Excluding undocumented migrants from health services is a violation of European law
JOINT PRESS RELEASE
Madrid/New York, 30 January 2014: The Committee mandated to oversee compliance with the European Social Charter has published the conclusions of its periodic revision of reports submitted by European Council members. The document analyses states’ compliance with regard to the right to health and social protection. In the case of the right to health in Spain, the report emphasizes that:
Royal-Decree Law 16/2012 and Royal Decree 1192/12 contravene Article 11 of the European Social Charter, to which Spain is a state party. The Committee has consequently reminded the Spanish government that “states have positive obligations in terms of access to health care for migrants, whatever their residence status.” Article 11 of the European Charter obliges states to ensure universal access to health care, that is to say that the health system must be accessible to all of the population without discrimination of any form.
The Committee warns that if Spain maintains RDL 16/2012 and RD 1192/12, "there will be nothing to show in the next cycle [periodical review] that the situation is in conformity with the Charter.”
The Government of Spain has repeatedly ignored the directives and recommendations made by international mechanisms in this arena. Since the health reform was approved, various international human rights protection mechanisms have underlined that it contravenes international standards with regard to human rights and have consequently called on Spain to modify RDL16 so as to guarantee access to health care for all people without discrimination. In May 2012 the United Nations Committee on Economic, Social and Cultural Rights, in addressing the reform, called on the state to ensure access to health services for all persons residing in its territory, regardless of their administrative situation, so as to comply with the principle of universality in the provision of health services. In July 2013 the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance recommended that the health reform measures adopted in the context of the economic crisis be revised so as to guarantee access to health among immigrants, regardless of their migratory status. More recently, in December 2013, the European Commissioner on Human Rights, in a report on the impact of austerity measures and reforms on human rights in Europe, reminded states that periods of financial difficulty, such as those currently being experienced by Spain and other European states, are not emergency situations that automatically entail the restriction of social and economic rights and the deterioration of the situation of socially vulnerable groups. Instead, they should be seen as opportunities to adjust national human rights protection systems and to improve the efficiency of national social security and social protection systems.
The economic crisis must not serve as a pretext to restrict or deny access to health in a way that affects the very essence of this right. The European Committee on Social Rights reiterates that governments are obliged to adopt all necessary measures to ensure that the rights set out in the Charter are effectively guaranteed during the crisis, particularly given that people need this protection even more in such times.
In the same vein, the Committee reaffirms what has already been established by the supervisory bodies of both United Nations and European human rights treaties: contexts of economic crisis do not reduce the human rights obligations of a state and governments must analyze the impact of measures planned in response to a crisis, in particular with respect to the most vulnerable groups, in consultation with pertinent organizations. Upon issuing its recommendations to Spain in May 2013, the United Nations Committee on Economic, Social and Cultural Rights reminded all states parties to the International Covenant on Economic, Social and Cultural Rights that austerity policies and other measures adopted by states in times of economic crisis must comply with obligations derived from the Covenant: any measure that could impede the progressive realization of economic, social and cultural rights must be temporary and limited to the period of the crisis; it must be strictly necessary and proportionate; the measure cannot be discriminatory and must take into account all possible alternatives, including fiscal policy measures, to guarantee the necessary services to alleviate inequities that may arise in times of crisis. Finally, the measures must identify and protect the minimum core content of the rights consecrated in said Covenant.
The undersigned organizations have repeatedly demanded a human rights impact assessment and the evaluation of the measures adopted by the Spanish government in response to the crisis in the light of these criteria, including an analysis of RDL 16/2012. Nonetheless, the government continues to ignore its obligations in this regard.
In consequence, the undersigned organizations:
- Call on the government to modify the legislation that contravene the European Social Charter with regard to the right to health, and to put an end to retrogression in social rights of all people living within Spanish territory, independently of their administrative situations and without discrimination, in accordance with the observations of the European Committee on Social Rights and the recommendations issued by the other aforementioned bodies.
- Call on all national authorities charged with overseeing compliance with international and European legal norms to which Spain has committed concerning social rights to more effectively scrutinize the policies and measures adopted by the state in the light of the norms and directives described.
The coalition of signatory organizations includes the following national and international non-governmental organizations: Amnesty International (Spain) Center for Economic and Social Rights (USA), Medicos del Mundo (Spain) and Red Acoge (Spain).
- Center for Economic and Social Rights (New York): Luke Holland, Communications Coordinator. +1 347.744.2934; email@example.com.
- Médicos del Mundo: Celia Zafra, Communications Coordinator. Tlf +34.91 543.6033, ext.301 or +34.629.214.755.
- Amnesty International: Ángel Gonzalo, Carmen López y Ana Gómez Tlf +34.91.310.1277 or +34.630.746.802.
- Red Acoge: Manuel Sobrino, Communications Coordinator. Tlf. +34.91.563.3779.
- The United Nations Committee on Economic, Social and Cultural Rights final recommendations to Spain.
- Letter issued by the Committee on Economic, Social and Cultural Rights explaining the criteria with which government crisis response policies must comply.
- Factsheet: a statistical snapshot of economic and social rights in Spain.