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How Do International Human Rights Influence National Healthcare Provisions for Irregular Migrants? A Case Study in France and the UK a

Milena Chimienti PhD Professor & John Solomos Professor

b

a

University of Applied Sciences and Arts Western Switzwerland / HES-SO, Haute Ecole de Travail Social / HETS, 28, rue Prévost-Martin, P.O.Box 80, Geneva, 1211 Geneva 4 Switzerland b

University of Warwick, Department of Sociology, Coventry, CV4 7AL United Kingdom, Email: Accepted author version posted online: 20 Apr 2015.

Click for updates To cite this article: Milena Chimienti PhD Professor & John Solomos Professor (2015): How Do International Human Rights Influence National Healthcare Provisions for Irregular Migrants? A Case Study in France and the UK, Journal of Human Rights, DOI: 10.1080/14754835.2015.1032225 To link to this article: http://dx.doi.org/10.1080/14754835.2015.1032225

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ACCEPTED MANUSCRIPT How Do International Human Rights Influence National Healthcare Provisions for Irregular Migrants? A Case Study in France and the UK

Downloaded by [HES-SO Haute Ecole Spécialisée de Suisse Occidentale] at 07:43 18 May 2015

Professor Milena Chimienti PhD (Corresponding Author) Email: [email protected] Affiliation 1: University of Applied Sciences and Arts Western Switzwerland / HES-SO, Haute Ecole de Travail Social / HETS, 28, rue Prévost-Martin, P.O.Box 80, Geneva, 1211 Geneva 4 Switzerland ------------------------------------------------Professor John Solomos Email: [email protected] Affiliation 1: University of Warwick, Department of Sociology, Coventry, CV4 7AL United Kingdom

Milena Chimienti is Professor of Sociology at the University of Applied Sciences and Arts Western Switzerland, School of Social Work Geneva. Her teaching and research interests are focused on the sociology of migration, and human rights and social theories. Her latest publications include: special issue ‘Irregular migrants: policy, politics, motives and. everyday lives’ co-edited with Alice Bloch (Ethnic and Racial Studies, 2011). Address: University of Applied Sciences and Arts Western Switzerland // HES-SO; Haute Ecole de Travail social // HETS, P.O. Box 80, 1211 Geneva 4, Switzerland. Email: [email protected]

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John Solomos is Professor of Sociology and Head of Department at the University of Warwick. His teaching and research interests are focused on the sociology of race and racism,


human rights and social theory, and multiculturalism and citizenship. His most recent books are Race, Multiculture and Social Policy (Palgrave Macmillan 2013, with Alice Bloch and Sarah Neal) and Transnational Families: Ethnicities, Identities and Social Capital (Routledge 2010 and 2011, co-author with Harry Goulbourne, Tracey Reynolds and Elisabetta Zontini). He is jointeditor with Martin Bulmer of the journal Ethnic and Racial Studies, which is published 12 times a year by Routledge. Address: University of Warwick, Department of Sociology, Coventry CV4 7AL. Email: [email protected]

Abstract: Debates about human rights have often questioned their potential for generating rights at national levels. In this paper we use the case of irregular migrants’ access to healthcare in the United Kingdom (UK) and France to explore the extent to which international human rights influence national healthcare provisions for irregular migrants. We explore the extent to which healthcare access and provision for irregular migrants in these two countries is in agreement with international human rights. In so doing, we examine what constitutes an infringement of the

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ACCEPTED MANUSCRIPT international human right to healthcare. Finally we sketch out some hypotheses about the role played by different state structures in the implementation of human rights norms, comparing the UK with France. We argue that although international human rights often have a largely


symbolic role in nation-state jurisdiction, they may sometimes represent a force for change. Key words: human rights, healthcare, irregular migration, France, United Kingdom

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ACCEPTED MANUSCRIPT Introduction

It is often said that there is a tension between human rights regimes at the international level and


those at the level of the nation-state. The root of this conflicting relationship is their different ideas about entitlement to rights: whilst for international human rights regimes, rights are awarded on the basis of a person’s humanity, for nation-states they are based on membership in them, i.e. within the citizenry (Tambini 2001: 199; Donnelly 2007: 281, 2008). Which regime has a stronger power in this relationship and the ability to influence the other remains a debated issue. For some scholars, nation-states are still preponderant in the definition of rights, whilst others emphasize instead the decline of nation-states in the organization of political space in the modern world.1 This article aims to explore these tensions through the specific case of healthcare provision for irregular migrants in two nation-states—France and the United Kingdom (UK). It examines the extent to which healthcare access and provision for irregular migrants in these two countries is in agreement with international human rights. The article also explores the extent to which international human rights influence national practices in this regard. In so doing, we will examine what constitutes an infringement of the international human right to healthcare. Finally we sketch out some hypotheses about the role played by different state structures in the implementation of human rights norms, comparing the UK with France. Whilst the tensions between international human rights and citizenship rights exist since the establishment of the United Nations’ (UN) system of human rights, they became more obvious in the early 1990s with the internationalization and acceleration of migratory movements. Scholars

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ACCEPTED MANUSCRIPT studying the legal status of migrants pointed out that a “postnational citizenship” was emerging (Bauböck 1994; Soysal 1994) and that human rights became a key feature of our contemporary and global order. They showed that international human rights have made it possible to extend


certain rights to non-citizens (Soysal 1994; Helton et al. 2000) or at least to encourage progressive interpretations of existing traditions (Santos 2002). Following this logic, people resident in national polities share the same rights, even if they do not have the citizenship of those polities. In contrast, scholars who acknowledge the continued significance of nation-states in the definition of rights emphasise that nation-state citizenship is still determinant in shaping everyday experiences on a country’s soil (see, inter alia, Cohen 1987; Koopmans and Statham 1998; Castles and Davidson 2000; Guiraudon 2000) and leads to a denial of rights to “noncitizens” (Castles and Miller 2009; Schuster and Solomos 2002). In other words these scholars demonstrate that the implementation of human rights still depends in practice on nation-state jurisdiction (Stasiulis and Bakan 1997; Joppke 1998 and 2001) and is restricted for many people as a result of their positioning within national belonging. This is intensified by the fact that nation-states’ power is related not only to their legislative capacity but also, as argued by Shafir and Brysk (2006), to the sense of belonging and solidarity they provide, which has been seen as essential to social cohesion and functioning. As a consequence the realization of human rights depends on their ability to fit within national frameworks and political realities (Shafir and Brysk 2006: 285). These tensions are created by nation-states themselves; in producing the UN system of human rights they created a “schizophrenic” situation—as pointed out by Douzinas (2007)—or at least a

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ACCEPTED MANUSCRIPT “paradox” (Nash 2011a) where states have to “ensure the human rights of individuals within their territories against their own violations” (Nash 2011a: 2). Despite the growth of non-state actors, the apparatus to denounce states’ violation remains limited: “the international human


rights regime remains ‘state-centric’ as states are responsible to sign, ratify agreements, donate resources, enforce law within their territories” (2011a: 2). These bodies of scholarship lead us to conclude that there are few ways for human rights to countermand nation-state decisions: the principle of subsidiarity gives greater autonomy to nation-states; moreover, the provision of rights does not and cannot diverge from nation-state policies. In this sense the tensions between international human rights and nation-states are seen by some as superficial (Douzinas 2007). And yet this paper will show how much effect international norms actually have in established states such as France and the UK. The case of irregular migration is particularly useful for exploring the potential influence of international human rights on nation-states, since one might expect that the illegality of stay of irregular migrants automatically excludes them from citizenship rights. Human rights (here the right to health) and citizenship rights thus conflict in the case of irregular migrants. How can healthcare be provided to irregular migrants without violating citizenship rights? And how can immigration policies, according to which an irregular migrant risks being deported if they go to hospital, be respected without violating human rights? How can this antithetical agenda be solved? Willen (2012: 820) suggests that, as irregular migrants are willing to pay for healthcare, an insurance arrangement would “improve their access to health care without overburdening state coffers”. Anderson and Rogaly (2005) and Bloch (2010) offer some further potential solutions. They argue that a separation between immigration status and labor rights would ensure

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ACCEPTED MANUSCRIPT that irregular migrants can access some basic rights. For Karl-Trummer et al. (2009), this separation already occurs in the case of health rights through a “functional ignorance” between departments with antithetical demands which makes possible the opening up of a “paradox-free


space” and, in so doing, ensures irregular migrants’ access to healthcare without their risking deportation. As we will show, this “functional ignorance” is only possible when there exists a certain level of independence between immigration and health policy. For Noll, this “functional ignorance” is impossible since welfare and immigration jurisdictions are indivisible: one cannot “choose à la carte which forms of state jurisdiction to engage, e.g. by activating welfare jurisdiction, but simultaneously demanding the inertia of immigration jurisdiction. (…) Rather, from this perspective, jurisdiction is an all-or-nothing concept, assembling powers that are beneficial with those which are detrimental for a given individual” (2010: 248). In contrast to Noll, we will argue that such jurisdictions have, in the past, followed divergent pathways regarding irregular migrants. The lens of healthcare is also significant in terms of the role of international human rights: as health is a fundamental need, one might expect that the right to health promoted by international human rights bodies would not be contested at the national level. As argued by Fassin and Memmi, the (sick) body could give irregular migrants social recognition when all other arguments seem to have lost their legitimacy (Fassin 2004; Fassin and Memmi 2004: 240). Yet even this “medical humanitarianism" is threatened (Ticktin 2006: 129). Different studies have shown that not only are irregular migrants lacking healthcare rights but that their illnesses, bodies and injuries are even seen as undeserving of attention (see, inter alia, Romero-Ortuño 2004; Ticktin 2006; Castañeda 2009, 2012; Fassin 2004; Søvig 2011; Marrow 2012?;

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ACCEPTED MANUSCRIPT Larchanché 2012; Willen 2012). In other words “they are excluded not only from the political community, but also from the moral community of people” who deserve attention (Willen 2012: 806).


As we will show, to become a force for change and to gain traction, international human rights need a favorable national context. So far the role played by states’ structure in the implementation of international human rights norms has been mostly examined through the comparison of their level of legalization: comparing for instance North-Western states with postcolonial states like India and those ruled by a military elite involving violence, as in the DRC (Nash 2011a). Hafner-Burton and Tsutsui (2005, 2007) and Nash (2011a: 4) have highlighted that, in the most repressive states, ratifying international human rights treaties made little difference to actual abuses. The administration of laws that are “at odds with elite strategies of war-making, robbery and rape” represent one of the main barriers (Nash 2011a: 15). The explanation regarding the putative variations in the realization of human rights between European states has to be sought elsewhere as European states formation and legalization are rather similar. Whilst such an analysis would be important, it would go beyond the purpose of this article. Rather, we will only sketch here some hypothesis based on comparing the cases of France and the UK.

Method

This article is based on 20 semi-structured interviews—conducted between 2008 and 2009— with health professionals, social workers and representatives of NGOs concerned with the

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ACCEPTED MANUSCRIPT advocacy of migrants’ rights in Paris and London. It builds on a number of documents (laws, NGO briefs and reports etc.) and the findings of recent research relating to healthcare for migrants in an irregular situation.


The UK and France have been chosen for this comparison as these countries are often portrayed as opposites, despite their similarities. On the one hand these countries have comparable socio-economic structures and one of the highest gross domestic products (GDP) in the world. They are among the most important European destination countries, host a large number of irregular migrants, and have declared themselves to be committed to international human rights. On the other hand they are seen as different with regard to citizenship and health policies—thus, their legal responses to irregular migrants’ healthcare differ significantly (Scott 2004; Cattacin et al. 2007, 2009; FRA; 2011; HUMA 2009 and 2010; Ticktin 2007, 2011; Da Lomba 2010; Karl-Trummer and Novak-Zezula 2011; Larchanché 2012; Woodward et al. 2013). These differences may highlight nation-state sovereignty and therefore a lack of national harmonization, despite the influence of international and human rights bodies. The article is organized in five sections. The next section explores the role of international human rights in relation to health and their rationale. The third and fourth sections focus on the French and UK cases respectively. For each case we will first consider irregular migrants’ rights to healthcare and how these rights have been implemented. We will explore the extent to which the two countries’ health policies converge or, instead, conflict with immigration policy, and study the discrepancies between national policies and international human rights. The concluding section provides an overview of the key questions raised by this paper.

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International Human Rights to Healthcare for Irregular Migrants


Health and human rights are often interlinked because they are seen as “complementary approaches to the central problem of defining and advancing human well-being” (Mann et al. 1994: 14). The right to health is frequently equated with the right to life and is therefore covered first by the general covenants of human rights.2 In this sense, the right to health is dependent upon the recognition of other rights, and vice versa (Hervey 2003: 195–196). Although migrants (with or without a legal permit of stay) are, in principle, protected by these fundamental rights, they do not seem sufficient to promote the right to healthcare for the most vulnerable, which may explain why specific treaties and conventions have been ratified since 2000. The aim of these accords is to acknowledge health as “a right, not just a service and not a charity, commodity or privilege”.3 For instance Article 13 (1) of the European Social Charter (ESC)/revised European Social Charter (rev ESC, online at http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm) declares that states have the duty to ensure both adequate healthcare and access to it for everyone, including those without resources. In May 2000, the UN Committee on Economic, Social and Cultural Rights (CESCR) also published a document which specifies the obligations that should be fulfilled by each state in order to secure this right, and indicators for monitoring their achievement (General Comment No. 14). In 2002, a UN Special Rapporteur was put in place to evaluate governments’ progress in achieving the right to health.

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ACCEPTED MANUSCRIPT The “right to health” is a shorthand expression to the “ right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (Leary 1994:28). It includes a number of different perspectives, often in tension with one other. The medical perspective tends


to focus on individual medical care and in so doing on “diagnosis, treatment, relief of suffering and rehabilitation” (Mann 1997:6). In contrast, the public health perspective is more concerned by the health of the population as whole and emphasizes primary prevention (i.e. “preventing the adverse health event”) and health promotion rather than curative measures (Mann 1997:6). As we argue the human rights approach to health needs to include both perspectives in order to promote and protect the health of irregular migrants and other groups. In this paper we have only been able to focus on access to healthcare provision, which represents the minimal denominator to the “right to health”. Some international treaties specify that healthcare is a right independent of the lawfulness of a person’s situation of stay (see, for instance, Article 35 of the Charter of Fundamental Rights of the European Union/EUCFR, www.europarl.europa.eu/charter/pdf/text_en.pdf). Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe makes it possible to stop the removal of a foreigner if that person suffers from a severe illness. The European Court of Human Rights (ECHR) monitors states’ compliance with this convention, which is legally binding. Following this convention, most European countries have implemented specific permits of residence for seriously ill irregular migrants which protect them from expulsion. For some migrants these temporary or indefinite residence permits for medical reasons represent the last resort in terms of staying (legally) in a country. The ECHR and the European Committee of Social Rights (ECSR) of the Council of Europe have managed

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ACCEPTED MANUSCRIPT to put pressure on those member-states which violate human rights (as we show below with the abrogation of the ticket modérateur in France), obliging them to refrain from expulsion either based on the international legal principle of non-refoulement of the Geneva Convention Relating


to the Status of Refugees or on Article 3 of the ECHR. To ensure the implementation of these international human rights, the Council of Europe has recommended that member-states should allow medical personnel the right not to share with immigration authorities the identity of their irregular-migrant patients (Resolution 1509 para. 16.4). This “medical humanitarism” is problematic for a number of reasons (Ticktin 2006). Firstly, these international human rights are to be implemented according to national conditions. Therefore their nature and extent vary between countries. For instance the fact that the temporary or indefinite residence permits for medical reasons are allocated through administrative decisions and are, in many cases, discretionary, further increases the discrepancies between the beneficiaries and the risk of arbitrary treatment (Health for Undocumented Migrants and Asylum Seekers Network 2009: 20). In practice it is therefore not surprising to find that the number of allocated humanitarian permits remains very limited (PICUM 2009). None of these treaties challenge the right of a nation-state to expel non-citizens from its territory. This “medical humanitarism” tends therefore to “favors sick and suffering body” and to maintain irregular migrants in a vulnerable situation and special category (Ticktin 2006:129). More generally, the emphasis of human rights practices on individual rights entails the risk to “exacerbate the individualizing effects of neo-liberalism (Bauman 1999; Beck 2006) and undermine still further the experiences of national solidarity on which policies of redistribution

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ACCEPTED MANUSCRIPT through the welfare state have depended (Turner 2002)” (Nash 2012: 6). Each right being granted on a case-by-case basis, international rights are more likely to be called into question (as highlighted by the case of N. v the UK or in France with the attempt to abrogate the


humanitarian permit, both of which issues are explored below). Despite nation-states’ freedom to put or not to put in place specific measures to ensure healthcare access for irregular migrants given their subsidiary power over international human rights, such measures have been implemented in both the UK and France. The next section will examine the extent to which these measures correspond to international human rights, looking at the healthcare norms and practices for irregular migrants in the UK first and then in France.

The United Kingdom—From Inclusive National Health Service (NHS) Access to Economic Differentiation

The UK has, until recently, had a very inclusive healthcare system which aims to provide similar but limited provision to all residents. To access NHS services, all residents must register with a General Practitioner (GP). GPs are responsible for primary care and are the gatekeepers to secondary care (Health for Undocumented Migrants and Asylum Seekers Network 2009: 3). The NHS, which provides the majority of health services in the UK, is funded by taxation. This system makes those considered “ordinarily resident”4 automatically entitled to free primary and secondary care. Those patients who are not “ordinarily resident” in the UK, such as tourists and

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ACCEPTED MANUSCRIPT those living in the country without a permit of stay (irregular migrants), are deemed “overseas visitors” (DoH 2011: 3). Before April 2004, “overseas visitors” could access primary and secondary (hospital) care


free of charge, independent of the legality of their situation. Thus access to healthcare in the UK was universal, without any distinction of citizenship, nationality or even lawfulness of residence. In this sense, health policy conflicted with UK immigration policy, which considered irregular migrants to be outside the common law. This system of access to healthcare corresponded to international human rights, but was not a consequence of the formation of human rights dating from the Second World War. Rather, this system arose from the national social-welfare system put in place after the Beveridge Report in 1942. However, this universality has since been challenged, curtailing healthcare access for the most vulnerable. Since April 2004, the British government has introduced changes in order to charge some categories of resident for certain types of health provision. The successive reforms have created a “two-tier” health system-with the expansion of private health insurance and provision in addition to the NHS (Laing 2001)-and irregular migrants and failed asylum-seekers (and their children) have been excluded since April 2004 from free hospital treatment and diagnosis, including secondary care, non-urgent treatment, ante- and post-natal care, medicines and anti-retroviral treatment. In order to implement these measures, the Department of Health initiated the new administrative role of “overseas visitors manager”, whose job it is to decide who is entitled to receive free NHS services by monitoring the immigration status of service-users. A new Cost Recovery Unit has been implemented in 2014 in order to enforce more rigorously the recovery of healthcare costs from (irregular) migrants. These new administrative functions are typical of the

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ACCEPTED MANUSCRIPT diversification of modes of surveillance of (irregular) migrants put in place in recent years by European countries, which tend to delegate this control to transport agencies, employers, service providers and even private citizens. However, access to primary healthcare was not affected by


the 2004 regulations (Health for Undocumented Migrants and Asylum Seekers Network 2009: 3). Another consultation was launched in February 2010 by the Department of Health in collaboration with the Home Office (HO) that lead to a refusal of entry to the UK to any person with a debt of £1,000 or more to the NHS (in force since 31 October 2011). In that same month, the Department of Health and HO collaboratively launched further public consultations that aimed to increase the restriction for accessing free healthcare. “Permanent residence” thus becomes the criterion for free NHS treatment (which is more limited than the notion of “ordinarily resident”—see the Immigration Bill introduced by the HO on 9 October 2013). As a consequence temporary migrants from the Non-European Economic Area (EEA) are required to pay an immigration health surcharge as part of their visa application. There is no change for irregular migrants as they continue to be charged for secondary care. Whilst the immigration health surcharge would have been relatively affordable for irregular migrant (circa £150–200 per year) and would have represented a solution to limit their health cost, they are ineligible. Following the 2013 consultation, charges for healthcare will be extended in April 2015 to some Accident and Emergency and some primary care—dentistry, ophthalmology and prescription charges in community pharmacies (DoH 2013). Basically only GP consultations remain “free” (i.e. paid only through taxation).

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ACCEPTED MANUSCRIPT The extension of charges to primary care caused the UK government to widen responsibility for controlling chargeable patients. Until recently the check was made by hospital trusts (secondary care) and not by GPs responsible for primary care, who were not legally required to


charge patients for NHS primary-care services. Irregular migrants’ access to healthcare depends on the GP’s decision to register or not register a “non-resident”. GPs can register any person living in their area and should not refuse someone unless their lists are full. Following the 2013 consultation, GPs are expected to “participate actively in the administration” of the new system. The ways in which this participation will be implemented are still in preparation. We can expect an adverse impact on irregular migrants, given the difficulties they are already facing in accessing a GP—the fear of deportation, a lack of information or understanding of how the NHS works, and language and time barriers. NGOs state that, in some cases, GPs are advised by Primary Care Trusts (PCTs) to refuse to register people because of their immigration status, which is an infringement of the current regulations (see the quote below). This overview of healthcare regulations shows that the curtailing of healthcare access in the last decade essentially takes an economic form in the UK. If irregular migrants are able to pay their medical bills, they cannot be denied access to medical treatment and entry to the country .5 Given the health costs and precarious living conditions of irregular migrants, these economic restrictions still represent a major barrier for this category of people and, as such, could be interpreted as a breach of human rights. In addition, they face an escalation of restrictions and controls. This is also a major change in the philosophy of healthcare in the UK, which had been “based on clinical need, not the ability to pay” (DoH 2011: 2). Yet, according to the Department of Health, these restrictions do not represent an infringement to international and human rights

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ACCEPTED MANUSCRIPT laws, since the NHS is advised not to deny urgent and immediately necessary treatment, even if the unentitled patient cannot pay in advance, and debts are often written off if the person is unable to pay (DoH 2011: 12).


The context of these changes is both common to all European countries in relation to the present economic climate and particular to the UK in relation to its universal healthcare system. In the UK, the presence of irregular migrants has only recently been problematized (Jordan and Düvell 2002). These migrants became an issue because of the fear that their number would increase, making it difficult for the labour market to assimilate all of them, and representing a potential cost for the welfare system. In the UK, this fear—which is not yet based on any evidence (Banting and Kymlicka 2006; Chauvin et al. 2009)—probably escalated due to the rise of healthcare as a share of gross domestic product (GDP) since 2000, reaching the average EU level in 2004, whereas it was 10 percent less than the OECD average in 1997 (OECD 2010). Whereas, thus far, the British healthcare system has aimed to provide similar but limited benefits to all residents, it now aims to be less inclusive and to differentiate between its beneficiaries. This selectivity went hand-in-hand with an increase in the British healthcare budget in order to improve its services and provisions. This investment seems to have sparked in the public discourse a fear of “health tourism”, i.e. the fear that foreigners would migrate to the UK in search of medical treatment. The recession that started in 2007 increased this fear, whilst the government tried to reduce its health budget along with other large public deficits (OECD 2010: 106), a trend that has been exacerbated by the NHS reforms launched by the Conservative–Liberal Democrat Coalition Government in 2010. This curtailing of universal access to healthcare is correlated with a convergence of health and immigration policies, as well

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ACCEPTED MANUSCRIPT as the individualization of healthcare attribution, as we will discuss in the remainder of this


paper.

The Convergence of Health and Immigration Policies as a Trigger for NGOs

One of the consequences of curtailing access to the NHS has been the collaboration it has created between the Department of Health and the Home Office since, as noted above, health policy previously contradicted UK immigration policy by not using nationality or permission to stay as a criteria for exclusion. This curtailing and the bringing together of these two departments conjures up—quasi simultaneously—a third actor as a counter-power: new and already existing NGOs. As shown by Basok and Carasco (2010), local migrant-rights groups play a crucial role in engendering policy change. In this case, they used a variety of means to denounce the lack of irregular migrants’ healthcare access—creating new organizations, employing a variety of public fora and using litigation. One of the measures put in place is the launch of a project to provide free healthcare. Two years after the 2004 restrictions, the Doctors of the World association developed a unit in London to help irregular migrants. Except for this initiative, almost all the existing NGOs (among others, the Migrants’ Rights Network, Medact, and the African HIV Policy Network) focus on advocacy and social work rather than on providing healthcare directly. These migrant-rights groups also used a variety of public fora to pressure the government to change its policy. They created coalitions in order to help as many individuals and organizations

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ACCEPTED MANUSCRIPT as possible to respond to the Department of Health consultation on the health policy (see, e.g., www.medact.org), and also published several briefs to inform the population as widely as possible. As shown by Basok and Carasco (2010), the use of litigation by these local migrant-


rights groups has also been crucial in engendering policy change. In March 2009, the Court of Appeal judgement in Regina (A) v West Middlesex University Hospital NHS Trust decided in favor of the claimant, concluding that it was unlawful to charge failed asylum-seekers.5 It also suggested that “Trusts should make an assessment of when an individual can reasonably be expected to return home before denying them treatment that is not ‘immediately necessary’” (www.medact.org, p.2). One difference between the UK and France is that, in the UK, NGOs based their arguments more on national legislation and public health grounds than on international and human rights discourses, as illustrated by a briefing paper co-authored by two NGOs (Migrants’ Rights Network and Doctors of the World) and a firm of solicitors (Pierce Glynn) in 2011 or in 2013 in response to the last consultation launched by the HO and DoH. The briefing paper argues, for instance, that to exclude irregular migrants from free primary healthcare is “unlawful” according to national policy, in that it breaches both current health regulations and the 2010 Equalities Act provisions regarding indirect discrimination in the UK (Migrant Rights Network 2011). Emotional arguments or an international human rights rationale are only used as a last resort by NGOs. Instead, they focus on national legislation, on economic rationale, public health grounds which are thought to be more effective, as highlighted by this social worker:

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ACCEPTED MANUSCRIPT We are not trying to make public campaigns because it is counter-productive. We are always sent back to the argument of “My granny's hip”: we cannot respond to such arguments, there is no time so we gave up. We're talking about health, not migrants


because combining the two cannot do justice to either ... our most effective lobbying is done by caregivers: the Royal College of GPs, the Royal College of Paediatricians. It is a powerful argument because it is not political, it's not linked to immigration. The current discourse of government is that of fairness: “I paid for the NHS, so I have right to it; then why should people who have not paid be entitled to it?” (Social worker, medical NGO, London, quoted in Hachimi Alaoui and Nacu 2009: 146, our translation).

Moreover, by not limiting the debate to the case of irregular migrants and, instead, showing that the curtailing of healthcare could affect any vulnerable person, NGOs defending migrants’ rights aim to increase people’s support. This rationale, in view of the “unlawfulness” of current practice, which is based on national legislation, also aims to encourage legal action by irregular migrants and empower them (see Joint Committee on Human Rights 2007). As well as the convergence of health and immigration policies, another consequence of the breach of universality of the NHS concerns the increase of individualization in the determination of who is or is not entitled to free treatment, as we discuss in the next section.

The Individualization of Healthcare

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ACCEPTED MANUSCRIPT Economic closure obliged caregivers to determine, on case-by-case basis, who is or is not entitled to free treatment. Since then, caregivers feel pressured to follow immigration rules and


choose their patients according to immigration status:

We discover that medical doctors do not have the same freedom to do what they want, the administrative power in the hospitals is stronger… (Social worker, medical NGO, London, quoted in Hachimi Alaoui and Nacu 2010: 169, our translation).

According to the NGO Migrants’ Rights Network, this pressure not only affects secondary care, but also GPs who, unlike doctors working in hospitals, have so far had complete discretion to choose whom to register. GPs seem to be influenced by this new rule and some therefore decided not to register irregular migrants:

Over two-thirds of PCTs in London have issued guidance to GPs that is incompatible with their legal obligations. Many PCTs advise GPs that they should only register people living legally in the UK for more than six months, but this is wrong, as the “ordinarily resident” test applies only to hospital services (Migrant Rights Network 2011: 2).

It is indisputable that the delegation of decision-making about who is entitled to free healthcare to hospital administrators (overseas-visitor managers) or GPs increases these health professionals’ responsibility and goes beyond their competence as caregivers. Health professionals often do not know how to make such judgments, given the complexity of the status

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ACCEPTED MANUSCRIPT of irregular migrants and failed asylum-seekers. They tend to take a decision based on subjective judgment, which leads to important discrepancies between caregivers and creates arbitrary decision-making.


Moreover, this delegation of control increases the responsibility of health professionals. They must accept or refuse to treat patients knowing that, if they refuse a patient who does not have the required documents, that person might not be able to get treatment elsewhere. This places the health professional in an ethical dilemma and requires him or her to take a position on health policy. If s/he decides to infringe the policy, s/he can decide that the person is at risk and needs “urgent and immediately necessary treatment”—which is not denied if a person not entitled to healthcare cannot pay in advance—or s/he can avoid checking the patient’s documents, as still happens in many hospitals, and thus avoid the need to demand reimbursement, as highlighted by this interviewee:

The situation is very different from one hospital to another. Some hospitals choose not to charge irregular migrants (…) others decide to write off the debts if the person is unable to pay. But now, more and more hospitals use debt collection agencies to recover debts from irregular migrants (Social worker, NGO defence of irregular migrants, London).

The definition of who has the right to healthcare is assessed case-by-case under this “administrative guardianship” (Hachimi Alaoui and Nacu 2010). It means that a non-national without a permit of stay might be deported if her/his illness is not judged serious enough to require treatment. This is what happened in the case of N v. the UK (http://www.escr-

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ACCEPTED MANUSCRIPT net.org/docs/i/case_of_N_v._the_united_kingdom). Ms N., a Ugandan national, entered the UK in 1998 and was diagnosed as HIV positive and “seriously ill”. After her asylum demand was refused, she appealed to remain in the UK in order to receive anti-retroviral treatment according


to Articles 3 (Prohibition of torture) and 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR). The European Court of Human Rights rejected her claim. This case marked a turning-point, making it possible to deport someone who was seriously ill “in spite of the immediate effect this may have on their life expectancy”. If such a person then decided to stay illegally in the UK, she would be refused treatment officially, not in the name of irregularity of stay but because she could not pay for it. This legal pirouette allows the UK not to breach (at least, not formally) human rights. In the UK, it is more the fear of not being able to finance medical costs than of being denounced to the immigration authorities that constitutes the main barrier to undocumented migrants going to hospital:

We have cases of persons who come to see us after they have been treated in hospital and charged. They cannot pay the bills. They are frightened to return to hospital. We have to insist and explain that it is their right (Social worker, medical NGO, London).

The UK case shows that economic closure in the health system can lead to more restrictive immigration rules and, in so doing, can bring together health and immigration policies. Since this change, the UK is seen as offering only partial access to healthcare for irregular migrants (KarlTrumer et al. 2010). The government argues that this economic closure does not represent an

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ACCEPTED MANUSCRIPT infringement of international and human rights, as everyone can be treated, independent of his/her situation of stay, if they can pay, and if they cannot, urgent and immediately necessary treatment will still not be denied. This economic closure, however, breaks down the universality


of the British health system and questions—as in other countries—irregular migrants’ right to health-related attention (Romero-Ortuño 2004; Ticktin 2007; Castañeda 2009, 2012; Fassin 2004; Marrow 2012; Larchanché 2012; Willen 2012). This breach called for a counter-power, embodied by NGOs, which launched measures to fill the gaps in state services. Because of their discretionary power, it also required health professionals to take a stance on health and immigration policies. As we have argued, however, this discretionary power can lead to arbitrariness and discrepancies in treatment. This case also shows that the government refers to international human rights, whilst NGOs try to avoid this discourse or use it as a last resort. The UK government made these changes acceptable by arguing that they fit with international human-rights definitions (DoH 2011). Yet economic closure and the individualization of healthcare—which go hand-in-hand—are an illustration of the risk which a human rights discourse entails of a decrease in social welfare (Bauman 1999; Turner 2002; Beck 2006). This might explain why NGOs are reluctant to refer to human rights to defend their case.

France: Towards the Inclusion of Irregular Migrants in Common Law

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ACCEPTED MANUSCRIPT France has, in a sense, seen an opposite trend to that of the UK, becoming more inclusive towards irregular migrants since the 2000s. Before this date, not only was the French healthcare system based on insurance, but access to health insurance was determined by the regularity of the


permit of stay of the beneficiary.7 After a number of social struggles, different reforms led to what is called the Couverture Maladie Universelle or CMU (Universal healthcare) in 1999. This law transformed the French health system into a more universal and inclusive one, allowing any permanent and regular resident in France, whose income is below a certain threshold, to benefit from free social security and healthcare. The universality of the CMU system has been questioned, however, as it does not include irregular migrants. Several organizations for the defence of migrants—including healthcare professionals and hospitals which paid the cost of those not insured—claimed that irregular migrants should be included in the CMU. This protest led the government of Lionel Jospin to create another system in January 2000, known as Aide Médicale d’Etat or AME (State Medical Aid).

State Medical Aid: A Breach in Immigration Policy?

State medical aid (AME) offers free access to healthcare for irregular migrants and similar treatment to that of nationals. In other words, this system allows irregular migrants to be dealt with under common law. AME seems to represent great progress in the recognition of irregular migrants’ right to health and is particularly remarkable in a context of increased restrictions, as noted by Fassin (2004), Ticktin (2011) and Larchanché (2012). Yet this system still excludes those who do not have a residency permit from universal healthcare (health insurance or CMU),

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ACCEPTED MANUSCRIPT creating a different category of “care receivers”. This distinction between “regular” and “irregular” migrants has been criticized by many organizations for the defence of migrants, who based their rationale on the principle of equality of treatment and international human rights


treaties or conventions signed by the French government—but without success, as the distinction still remains today. Those who fought against this two-tier system (CMU–AME) feared that the distinction would become more than symbolic and lead to the curtailing of the healthcare rights of the most vulnerable persons. Their fear has been proved right, as there have been several changes in the law since then to reduce access—as pointed out by Larchanché (2012), it tends to reproduce hierarchies and depict irregular migrants as undeserving. The government attempted, with the Loi de finances rectificative pour 2002 (http://www.legifrance.gouv.fr), to bring in a requirement that irregular migrants should contribute to the costs of their healthcare. This contribution is called the ticket modérateur. A large number of NGOs, not just those dealing with the issue of migration (among others, associations for Improving the Condition of the Poor and those supporting people living with HIV) and healthcare professionals have fought the ticket modérateur (GISTI 2003). The case was judged after a claim was made by the International Federation of Human Rights Leagues in collaboration with two French NGOs (Groupe d'information et de soutien des immigrés—GISTI—and the Ligue des droits de l’Homme or LDH) against France (FIDH v. France, http://www.escr-net.org/docs/i/400976). The European Committee for Social Rights concluded that the ticket modérateur for irregular migrants had “violated the right to medical assistance” according to Article 13(4) ESC/revESC. In response to the decision, the French government changed its policy and the ticket modérateur is no longer implemented for irregular

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ACCEPTED MANUSCRIPT migrants. However, in 2003, the government managed to put in place additional requirements for the AME: since this time, a person must have been in France for at least three months, must have proof of his/her identity and must earn less than a certain amount in order to qualify. Since 2008,


associations have also been required to refuse demands from irregular migrants to serve as a private address if the migrants have not lived in the country in the last three months; in the same year, the AME used admission documents that could not be copied, including, as of 2009, laminated cards, in order to prevent their transfer between individuals. In 2011, the Loi de finances rectificative again attempted to put an end to free access to healthcare, requiring the annual contribution of 30 euros per person wishing to benefit from the AME. Although this contribution seems eminently affordable, several NGOs and health professionals have, again, fought against it, as it represents an additional barrier to healthcare access for those who are already in difficulty. The same year, the government repealed the temporary permit of stay for health issues. The former law regarding financial contributions has already been abrogated by the new (socialist) government of François Hollande, but not the second. Each time, the rationale for these attempts to limit irregular migrants’ access has been based, as in the UK, on a fear of abuse of the system by those who have no entitlement to it and of a surge in health tourism. However, several studies prove that the demand for permission of stay for health issues has not increased in recent years (Chauvin et al. 2009), a finding confirmed by a report commissioned by the General Inspection for Social affairs and Finances (IGAS and IGF, see Cordier and Salas 2010). As the AME remains free, the main problem in France concerning access to healthcare for irregular migrants is their having proof of three consecutive months’ residence. As in other countries, many irregular migrants in France are homeless and therefore use migrants’ rights

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ACCEPTED MANUSCRIPT associations as a private address. The AME is provided by the Social Security agency. In contrast to the UK, healthcare professionals are therefore not (or are less) directly linked to an assessment of who is entitled and who is not to (free) care, and to what is considered a suitable


document, as illustrated by the following quote:

The proof of residence, this is awful! From one area to another it changes. To give you an example: in the 93 [area] the orange card [which is a tube/bus pass] is considered as a proof of residence in France, whereas it is not the case in Paris. We must find the proofs that are accepted by the social security agency, which is really uncertain: this is assessed individually, it depends on the social security agency […] (Social assistant at a Parisian hospital, quoted in Hachimi Alaoui and Nacu 2010: 165, our translation).

This organization (the AME) protects the independence of health professionals and allows them to focus more on their medical role than are able those working in the UK, as argued by Hachimi Alaoui and Nacu (2010). However, in some cases, health professionals are pushed to leave their medical position and become more involved in their patients’ lives. For instance, when the lack of regularization through asylum threatens the life of their patients, some health professionals advise them to use their poor health as a reason for requesting regularization, rather than political issues related to their situation in their country of origin. One of our interviewees made this point clear, sharing his dilemma with us:

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ACCEPTED MANUSCRIPT Recently I advised one of my patients to ask for a temporary permit of stay for medical reasons. I thought he had no chance of being granted asylum for political reasons and therefore I thought that his health issues could help him to stay at least temporarily. It is a


difficult decision and I am not sure I would take it again because, if I am wrong, my advice could have an important impact on my patient’s life (Health professional, a Paris hospital).

Since 2010, in the context of votes on finance-act amendments, several obstacles have complicated access to AME (see Larchanché 2012) — the ever-diminishing financial support for the association’s health-related activities, the small number of AME applications treated per day and the health-service bureaucracy’s suspicions of fraud. These obstacles extend even to those who have managed to obtain the AME, which therefore does not guarantee them healthcare access. According to a report by the French NGO Médecins du Monde, 37 percent of doctors refused to provide care to people entitled to AME. The basis for their refusal was that ‘they cannot charge these patients over the minimal token fee (…) and AME beneficiaries do not need to pay consultations up front. This means that doctors obtain reimbursement from social security directly, which usually takes longer than immediate fee for service’ (Larchanché 2012: 861). The Observatory of Foreigners’ Health (ODSE) also denounced the practice by doctors of asking patients to pay a very high fee for the necessary health certificate, the delays in the paperwork being issued or responding too slowly to the AME application (ODSE 2010). This brief overview shows that, in contrast to the British healthcare system, the French one has become, in a sense, more inclusive, even for irregular migrants. France is classed as one of the countries offering full access to healthcare to irregular migrants (Karl-Trumer et al. 2010).

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ACCEPTED MANUSCRIPT However this inclusivity does not mean universal access to healthcare: instead it has created separate systems. To benefit from AME, irregular migrants have to fulfil several bureaucratic requirements, as also shown by Hachimi Alaoui and Nacu (2010) and Larchanché (2012). In


France the problem is not the lack of social rights but the gaining of access to these rights. As argued by Jacobsen (forthcoming), to access these rights, a person needs to have an identity and a history and therefore be ‘visible’—however, the irregular status of undocumented migrants requires a certain ‘invisibility’ if they are to avoid deportation. The greater number of obstacles to accessing AME show how, in the UK and other countries, the deservingness of irregular migrants to be part of the political and moral community is always called into question (Willen 2012). Another difference between the UK and France concerns the use of human rights discourses. Whereas French NGOs use them to support their claims (as illustrated by the collaboration between the International Federation of Human Rights Leagues and two French NGOs), in the UK, NGOs justify their demands according to the current national legislation. We also note that changes in government resulted in the back-and-forth progress of health policies. Each time, the problematization of migration was used for political ends to mark an opposition between the two main political forces. In this sense, abrogation of the ticket modérateur or of the 30-euro participation fee enabling a person to benefit from AME seems to have been influenced more by a national political party’s willingness to change previous policies to mark its difference from other parties than by international human rights. Finally, health professionals in France seem more independent from immigration policy and more able to focus

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ACCEPTED MANUSCRIPT on their medical duties than in the UK, as the decision about who is entitled to healthcare and


who is not is taken by others (the Social Security agency).

Conclusion

This paper has explored the extent to which healthcare access and provision for irregular migrants in France and the UK is in agreement with international human rights. It has used the situation of irregular migrants to exemplify the tension between international human rights and citizenship rights, and the contradictory roles of national immigration and health policy. Whilst immigration policy tends to criminalize irregular migrants and therefore curtail their rights, the aim of health policy is traditionally to cure and care for anyone independent of the legality of their stay. Today, in theory, irregular migrants have free access to primary healthcare in both the UK and France.8 Yet these states have increased the barriers to the exercise of this right so that immigration and health policies are increasingly converging. The independence of the health system from migration policy is also curtailed because, in both countries, the right to healthcare for irregular migrants seems less influenced by international human rights discourses and bodies than by historical traditions of immigration and welfare policies in particular countries (Cattacin et al. 2007). Since health policy is more influenced by path-dependency in nation-states than by international human rights, policy is likely to change according to national contingencies.

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ACCEPTED MANUSCRIPT Despite these different trends, both countries have tried to exclude irregular migrants from their national spaces, in a context where we have seen a growing problematization of migration in the political discourse and in the media, along with the crisis of the welfare state (Schierup et


al. 2006). In this context, international human rights are used as a last resource with which to change the law when an infringement takes place; however, they have only limited impact, as illustrated by the AME in France or the case of N. v. the UK. What these French and UK cases show is that, although the international human rights tools provide a legitimating framework to support irregular migrants’ claims for access to healthcare, this framework alone is not sufficient. The enforcement of international human rights depends on a political and social “reception” for them at the national level. This confirms and illustrates what Shafir and Brysk (2006) have discussed in comparing citizenship rights and human rights. Although international human rights can act as a force for change, they are framed in terms of national interest “rather than in terms of global citizenship or universal morality” (Nash 2011b.). As also argued by Nash, transnational solidarity is still more difficult to build than existing sentiments of national solidarity, which explains why activists tend to use more “national pride” rather than “principles of universality” (2011b). Another question raised by this paper is what constitutes an infringement of the international human right to healthcare. Although both the UK and France limit irregular migrants’ access to healthcare, the governments of both countries argue that they do not infringe international human rights since irregular migrants are allowed access to emergency treatment even if they are not entitled to State Medical Aid in France or if they cannot pay in advance in the UK. Are these governments right to argue this?

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ACCEPTED MANUSCRIPT As posited by Hachimi Alaoui and Nacu (2010) and Sövig (2011), among others, the definition of what constitutes an emergency is problematic. It requires an interpretation from caregivers and therefore forces them to take responsibility for issues that go beyond the question


of health, i.e. technocratic and immigration matters. Moreover, the obligation to distinguish between what is an emergency and what is necessary for a patient’s well-being seems incompatible with their role as caregivers. The argument that those whose health issues are not considered an emergency could pay for treatment raises further questions, including how to deal with those who are not able to pay because they are children. Whilst the UN Convention on the Rights of the Child (CRC) requires that irregular children have the same access to healthcare as children with a legal permit of stay or nationals, the legal situation is unclear and there are national variations (Sövig 2011). Several NGOs also argue that this rule is discriminatory not only because it would treat residents of the same country differently, but also because it would make irregular migrants pay twice for healthcare, i.e. both through taxes and consumption (as do legal residents) and then also for nonemergency care. In both countries, access to healthcare for irregular migrants on a case-by-case basis did not correspond to an increase in rights as such. For all these reasons, if the restrictions that these states place on irregular migrants’ access to healthcare are not formally a violation of human rights (especially of Article 12 of the ICESCR), they do tend to de-humanise irregular migrants. It is also important to note that the right to health for irregular migrants is limited because it focuses largely on a medical perspective, neglecting prevention and health promotion, although they are in many ways as important.

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ACCEPTED MANUSCRIPT Finally the article provided some hypotheses about the type of states that would be more favorable to the implementation of International Human Rights norms. So far, only the differences between repressive and juridical states have been highlighted and explained


according to their level of state formation and their legalization (Nash 2011a). The differences between France and the UK allow us to assume that a liberal orientation—as in the case of the UK—might lead health and migration policy to be more influenced by economic pressure (Favell 2003). Besides, the universalist structure of healthcare in the UK—compared to the health insurance system in France—seems to impede the independence of the health system. Insurance models that are based on individual contributions are more independent from the state and guarantee access regardless of the profile of the patient, as, for instance, the legality (or otherwise) of their stay (see, on this, Cattacin et al. 2009). Such a model could guarantee the health policy greater independence from the migration policy, or, at least, a “functional ignorance” between the different departments (Karl-Trummer et al. 2009). Furthermore, the French republican model and nation-sustaining argument of “Liberté, Égalité, Fraternité” could represent an additional explanation for the inclusion—at least on paper—of irregular migrants in common law. Further researches are needed in order to develop a more comprehensive understanding of which type of states’ structure facilitate or impeded the realisation of human rights.

Acknowledgments

This research could not have been carried out without the funding received from DRESS–MiRe

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ACCEPTED MANUSCRIPT and from the people who agreed to be interviewed. The research was conducted between 2007 (October) and 2009 (October) by (alphabetic order) Sandro Cattacin, Milena Chimienti, Myriam Hachimi Alaoui, Alexandra Nacu and Serge Paugam. Thanks, also, to the two anonymous


reviewers and the editor of the Journal of Human Rights for their important and constructive comments—they gave us valuable suggestions for references and on how to improve our paper.

Notes

1

For an overview of this debate, see, among others, Castles and Miller (2009); Schuster and Solomos (2002).

2

The 1948 UN Universal Declaration of Human Rights (Article 25.1, http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng); The International Covenant on Economic, Social and Cultural Rights, http://www2.ohchr.org/english/law/cescr.htm#art12.

3

www.ifhhro.org/health-a-human-rights/the-right-to-health [15 April 2011].

4

“‘Ordinarily resident’ is a common law concept interpreted by the House of Lords as living lawfully in the United Kingdom, voluntarily and for settled purposes as part of the regular order of their life for the time being, with an identifiable purpose for their residence here which has a sufficient degree of continuity to be properly described as settled”, http://www.datadictionary.nhs.uk, accessed 17 June 2014.

5

Unlike some countries such as Germany (see Scott 2004), where the Asylum Law (Asylbewerberleistungsgesetz / AuslG) stipulates that any member of an official board has

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ACCEPTED MANUSCRIPT a ‘duty to denounce’ irregular migrants voluntarily at the risk of being penalised if they do not (Article 76), and that anyone who helps an individual without a regular residence permit can be fined or detained for up to five years (AuslG, Article 92a).


6

The claim led first to a change as the UK government agreed to stop charging failed asylum-seekers for healthcare. However, the change was temporary as the 2013 consultation included them again amongst those who will be charged (see Regina (A) v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin), paragraph 27, page 11 and DoH 2013).

7

This was based on the so-called “Pasqua Law”—in 1993, Pasqua was the French Home Secretary.

8

In the UK since 2014, only GP consultations remain free of charge for irregular migrants.

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