International Migrants Day - Friday 18th December - is an opportunity to raise awareness on the human rights of migrants.
On this day we highlight the growing tendency in different states of the European Union to impose a 'duty to denounce' on undocumented migrants, which harms undocumented migrants' access to healthcare and the professionals working with them, notably many organisations that are part of the HUMA network.
The European 'HUMA' network * denounces the punishment of humanitarian assistance to undocumented migrants and asks for the removal of national laws acting to stop humanitarian assistance to undocumented migrants and a strict ban on any kind of denunciation or arrest of undocumented migrants when they attend health services.
In 2002, an EU directive (1) defined the facilitation of unauthorised entry, transit and residence. According to this directive, Member States had namely to adopt appropriate sanctions on "any person who for financial gain, intentionally assist a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens."
In EU countries, in which the HUMA network is present, there are many examples of legislation criminalising assistance to undocumented migrants residing in the Member States, even if it is not for financial gain. Other legislation states the obligation to denounce undocumented migrants - to the detriment of their most basic human right to health.
Laws Around Europe
The latest example comes from Spain, which modified its Aliens Act in November 2009. With this law, housing an undocumented migrant and allowing them to be registered in the local register is considered as a serious offence. This will have important consequences on undocumented migrants' access to health care, as being locally registered is a sine qua non condition to have effective access to health care.
In France, the Code for regulations on entrance and residence of foreigners (2005) specifies in article L622-1 that all persons that facilitate "in a direct or indirect way" the stay of foreigners with no residence permit will be punished by a term of imprisonment of 5 years and a fine of 30.000 euros". According to the French National Consultative Commission on Human Rights" (2) a literal interpretation of this article makes of any good-faith assisting person a suspect. Several recent and well-known cases have demonstrated that this is not only theory.
In Germany, the legislation penalizes assistance to undocumented migrants even if it is not given for financial gain. It obliges public administrative services (3) to denounce migrants with no residence permit, they risk being penalised themselves if they don't do it. This obligation includes the welfare centres, in charge of authorising access to health care ('Krankenschein'). It is compulsory for the centres to give authorisation in order to receive care and in order to get reimbursement for the cost of hospital healthcare.
Health versus immigration control
Members of the HUMA network witness the tightening of conditions for accessing healthcare that is occurring in many countries around Europe. This is despite the fact that access to health care is a fundamental right to every person residing in Europe, whatever his/her administrative situation is.
"Outside the UK, if you are an undocumented migrant and you see a GP they may report you to the authorities. Consequently you will not dare to go to their health centre, because you are scared. The laws are also trying to deter the organisations and persons willing to assist them", explains Susan Wright, Director of MDM UK. "The direct consequence of such regulations is a lack of access to health care - which hurts the health status and is opposite to a sound public health policy."
The HUMA network and its members urge that migratory policies should not stand in the way of the right to health.
For these reasons, the HUMA network calls for:
- The removal of legislation in all EU Member States' that criminalizes humanitarian assistance to undocumented migrants
- Safeguards on medical confidentiality, and a strict ban on any kind of denunciation or arrest of undocumented migrants when they attend health services.
* 13 organisations are part of the HUMA network: Doctors of the World UK, Belgium, France, Germany, Greece, Italy, Netherlands, Portugal, Spain, Sweden, United Kingdom, and KISA in Cyprus, SKOP (HAM) in Malta, and SIP in Poland.
[1] COUNCIL DIRECTIVE 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.
[2] http://www.cncdh.fr/IMG/pdf/texte_du_discours_YR_-_19_novembre_2009.pdf
[3] Recently, welfare social centres have benefited from an extension of the medical secret, and do not have to report to the authorities in specific circumstances.
