When will the light of rights shine upon all?(Image courtesy of the National Park Service)

When will the light of rights shine upon all? (Image courtesy of the National Park Service)

It is among the most – if not the most – prevalent form of formal discrimination when it comes to the ability of everyone to enjoy universally recognized human rights, embodied in the laws of most countries: discrimination against non-citizens, and above all, against undocumented immigrants, with respect to the right to health. Most countries deny equal health care rights to undocumented immigrants (or as they are often referred to, irregular migrants, or migrants without papers). They are often entitled – as in the United States – to emergency care, but that may be all (and even that may require payment). Even as ever more countries move towards what they – and the international community – calls universal health coverage, universal it is not.

Human rights law is clear, with non-discrimination a central command. The treaty containing the right to health, the International Covenant on Economic, Social and Cultural Rights (ICESCR), prohibits discrimination on grounds including “national or social origin” and “other status” (art. 2(2)). The UN committee that offers the authoritative interpretation of the ICESCR reads “nationality” as among the forms of “other status” upon which discrimination is prohibited. In describing this prohibited ground, the committee explains, “The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation” (CESCR, General Comment 20, at para. 30). By way of example, the committee offers the example of children, including with undocumented status, receiving – as their right – education, health care, and adequate food. In other words, one health care regime for citizens and another, inevitably lesser, regime for non-citizens, including undocumented migrants, constitutes prohibited discrimination.

In the overall scheme of health care costs, bringing national law into conformity with international human rights law with respect to undocumented migrants is relatively low. In the most recent such estimate, the International Organization for Migration estimated that there are at least 50 million irregular migrants worldwide, less than 1% of the world’s population. While varying considerably by country, an average of less than 1% of the population, and so less than 1% of the average national health budget, seems eminently affordable – from the perspective of both public health and of developing a just, inclusive, rights-based society.

A small but growing number of countries are recognizing this, with their laws and policies ending discrimination against undocumented immigrants – perhaps the best proof that this discrimination is not inevitable and need not persist.

In Latin America, Argentina stands out for guaranteeing irregular migrants access to free health care, and WHO reports that in Brazil, regardless of their legal status, migrants have access to the country’s universal health coverage program (p. 26), which requires no premium and for which most health services require no co-payment (p. 16, 11).

In Europe (see here for another European overview), six countries have progressive regimes with respect to health care for irregular migrants, though even in these countries, legal distinctions remain.

In Italy, with among the most equal regimes, undocumented immigrants are entitled to essential health services, including to meet long-term health needs. While asked to pay normal contributions, they may declare that they are unable to pay. This bears considerable similarity to Belgium and the Netherlands. Necessary health services are broadly available to irregular migrants in Belgium (p. 14), though with several administrative requirements (p. 17). Similarly, in the Netherlands, irregular migrants are entitled to necessary health services; care is free if they can demonstrate that they cannot pay (p. 19).

In France, irregular migrants have full access to the public health system – though only after proving continuous residency in the country for at least three months. Similarly, for most non-emergency health services, irregular migrants in Portugal (p. 19) must prove continuous residency of at least 90 days.

A recent change in Sweden’s law focuses on necessary care. In Sweden (p. 21), children of migrants without papers receive the same health care as Swedish citizens. Under a 2013 law and 2014 recommendation by the National Board of Health and Welfare, the necessary health care to which adult migrants without papers are now entitled is extensive and should, in practice, differ little from what citizens receive.

While Sweden has progressed, in recent years Spain (in 2012) put considerable restrictions on irregular migrants’ access to the national health program (p. 20), until then equivalent to that of Spanish nationals. Until a change in 2003, France had provided irregular migrants the same health services as nationals without the current waiting period.

Thailand, meanwhile, has perhaps the most comprehensive health scheme for migrants in Asia, including those without documents, though it is not on par with Thai citizens. For more than a decade, undocumented (and other) migrants in Thailand have purchased into a Compulsory Migrant Insurance Scheme, established in 2001, though it is less affordable – including an annual fee and with fewer benefits than the main public scheme to which Thai citizens belonged, the 30-baht scheme, named for its co-payment of about $1. And even now, some hospitals turn away undocumented migrants, and many hospitals are turning away migrants from AIDS care.

Rwanda requires everyone in the country to have health insurance. Foreigners who do not have any must subscribe within 30 days (or possibly 15 days [para. 27); they may buy into any of the country’s health insurance schemes. With other schemes linked to formal sector employment, governmental employment, and commercial health insurance, which may be beyond irregular migrants’ economic means, the country’s widely touted community-based health insurance program, with its low premiums, seems the most likely route. Yet the UN Committee on the Protection of the Rights of Migrant Workers and Their Families reports (para. 31) that as of 2012, the community-based insurance scheme was still being rolled out to migrants workers, and that workers in some sectors were ineligible.

In my own country, the United States, the Affordable Care Act’s push for universal coverage shamefully excluded undocumented immigrants from its benefits. (Other categories of immigrants remain ineligible for health care benefits. Even lawfully present immigrants generally cannot participate in Medicaid, the health insurance program for Americans living below — or under the Affordable Care Act, slightly above — the poverty line, until they have been here for five years, with the exception of children and pregnant women.) Encouragingly, some localities, including Los Angeles, are recognizing the injustice of this approach.

Even where national laws meet (or come close to meeting) the international human rights standard – and what ought to be a basic standard of humanity – challenges exist in terms of achieving equal access. For example, in Portugal, many immigrants are unaware of their rights and believe that health providers are obliged to report migrants without legal status to the authorities. In Argentina, it took some time after the law changed to enable undocumented immigrants to receive free health care before administrative and medical staff ceased requiring Argentine documentation.

Perhaps in no area of the right to health is there such a clear difference between the requirements of international law and national law and policy. It is little surprise that the population that suffers from this discrimination is among the most marginalized of populations. Changing national laws to extend full access to health care to undocumented immigrants stands, then, as one of the most urgent challenges to realizing the human rights imperative of non-discrimination and meeting the needs of the most vulnerable and marginalized populations. And without this change, such global slogans as the Sustainable Development Goals’ pledge that “no one will be left behind” ring hollow.