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Spain reverses course and partially restores undocumented migrants’ access to health services

Gaby Oré Aguilar is Deputy Executive Director at CESR

Three years ago, in April 2012, the Spanish government issued Royal Decree 16/2012, declaring the need to adopt “urgent measures to guarantee the sustainability of the national health system.” This effectively put an end to the universality of health service provision that this country had previously enjoyed. One of the principle measures contained in this decree was the suspension of all health services to undocumented migrants living in the country, with the exception of emergency services for children and pregnant women.

As a consequence of this decision, the government revoked health cards – the documents that ensure access to public health services in Spain – for more than 870,000 people, thereby excluding them from access to health services and medications, including treatments for serious and infectious diseases.

“We are willing to take a step”

Yesterday Spain’s Ministry of Health announced in an interview with a news agency that undocumented migrants in the country would once again be provided primary health care by the National Health System (SNS), but it also announced that the health cards revoked in 2012 would not be restored. As such, universal access to health care has not been restored. Moreover, it affirmed that the decision was a response to “matters of public health”, to “not saturate emergency rooms” and because “it’s more practical”.

The reluctant tone of the announcement and the restrictions expressed by the Ministry have provoked skepticism, particularly among organizations working for the protection of migrants’ health, associations that protect public health services, and unions, which have highlighted the insufficiency and opportunism of the move.

The measure is a step in the right direction and, for many undocumented migrants; it represents a potentially life-saving opening to access health services, but without health cards, access to specialized treatments, medications, nor any guarantee of continuity. As such, restoration of the right to health of this sector remains a pending task in Spain.

As has been affirmed by Red ACOGE, “the right to health care is still not guaranteed in Spain.” Médicos del Mundo has meanwhile stated that “this measure in no way represents the restitution of the universal model of our health system, nor does it restore the rights which were eliminated by RDL 16/2012”.

Furthermore, the Spanish government has not explained why the exclusion of undocumented migrants was deemed both urgent and necessary for the sustainability of the national health system, nor indeed why it is now prepared to backtrack for reasons that have little to do with the motives of austerity and economics that were previously cited.

National and international pressure

The Spanish government’s u-turn has not come about by chance. It has found itself obliged to give in – albeit in a partial manner – as a result of two preponderant factors: the sustained and growing pressure, at both the national and international levels, about the discriminatory and regressive character of the measure; and the current pre-electoral political context in Spain. The opposition and new political actors which have emerged from the popular discontent generated by austerity measures, have made it clear that they will include the restoration of universal health in their electoral agendas.

The adoption of RDL 16/2012 by the Spanish government has been repeatedly and severely criticized by various United Nations bodies, such as the Committee on Economic, Social and Cultural Rights, Special Rapporteurs and Independent Experts; by the European Committee on Social Rights, and most recently by more than a dozen countries participating in the Human Rights Council. These voices have repeatedly denounced the discriminatory and regressive character of the health exclusion of undocumented migrants as a violation of international human rights law.

Since 2012, the Center for Economic and Social Rights has worked together with a broad coalition of organizations to generate the evidence and arguments necessary to provoke recommendations and directives from international human rights mechanisms regarding the negative impacts of austerity policies in the country. Similarly, it joined the efforts of its national partners – Médicos del Mundo, Red ACOGE and Amnesty International – to denounce the exclusion from health services of one of the most vulnerable and hardest hit sectors in the context of the economic crisis. The joint campaigns and advocacy actions of these organizations have placed these concerns firmly on the political and media agendas, and more recently on the electoral agendas of the political parties.

RDL 16/2012 has also been brought before the courts. Various autonomous communities – the Basque Country, Navarra, Asturias and Andalucía – have considered that this law violated the Spanish Constitution, that it invaded their territorial competency, that it was not justified as an emergency measure, and consequently filed complaints in opposition to the decree. These complaints are now pending a ruling by the Constitutional Court.

Recently, Red ACOGE and CESR presented a demand against a Ministerial Order issued by the Ministry of Health, Social Services and Equality (SSI/Orden 1475/ 2014) which establishes fees and requirements for persons excluded from the public health system by Royal Decree 16 to buy alternative health insurance giving them access to basic care through “special agreements” with the health administration. The petition argues that said norm was unconstitutional, in the same way as the Royal Decree from which it is derived (RDL 16/2012). The fees established by the norm are comparable to those of private health insurance. The government did not take into account the impact that the charges would have on the population at which it was targeted. Moreover, the norm introduces tougher access requirements than the law which created these “special agreements”. The National Court admitted the claim, which is now pending resolution before the same body.

What remains to be done

Access to universal health care is a human right that must be restored in Spain. This means providing health cards to those from whom they were revoked in 2012, in order that they have access to health services whether these be primary or specialized. From a legal standpoint, it means repealing or modifying Article 3 of Royal Decree 16/2012 which divides the population among insured and beneficiaries, and excludes undocumented migrants from accessing health services. The government, through its spokesperson in the Ministry of Health, Social Services and Equality Alfonso Alonso, has not shown any inclination to implement any of these steps.

On the contrary, in announcing the restoration of primary health care services for undocumented migrants the Minister has declared himself to “be opposed” to undocumented migrants having access to health cards, saying that this would give them a right that “no other country in Europe” provides. 

The Minister overlooks the principle of universality contained in the European Charter of Social Rights, which obliges member states to provide access to health care to the entire population without discrimination and independently of their administrative status. The European Committee on Social Rights reminded Spain in 2014 that RDL 16/2012 transgressed Article 11 of the Charter, to which the country is a signatory, indicating that said article obliges states to ensure universal access to health. That is to say, that the health system must be accessible to the entire population without discrimination of any form.

In the immediate term, it is important to make sure that the implementation of the restoration of primary health services is effective and compliant with the fundamental rights of this collective. In the medium and long term, CESR will continue working with its national partners for the restoration of the rights of universal access and health coverage in Spain.

Posted by Gaby Oré Aguilar on April 2nd, 2015