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Irregular migrants and the human right to health care: a case-study of health-care provision for irregular migrants in France and the UK

Published online by Cambridge University Press:  20 September 2011

Sylvie da Lomba
Sylvie da Lomba*
Affiliation:
University of Strathclyde
*
vie.da-lomba@strath.ac.uk
Rights & Permissions [Opens in a new window]

Abstract

International human rights law attaches the right of health care to the person. States, however, predicate this right on membership in the national community and access to publicly subsidised health care is normally contingent on national membership. With this in mind, this article considers the significance of a human rights approach to access to health care and undertakes a comparative study of health-care provision for irregular migrants in France and the UK. Irregular migrants are ineligible for national membership because they have breached immigration laws. Consequently their right to health care may only arise from international human rights law. This comparative study, however, shows that states resist the idea of a right to health care for people they regard as a threat to national sovereignty. Yet the author posits that the exercise of the government's immigration power may be reconciled with the realisation of irregular migrants' human right to health care.

Information

Type
Articles
Information
International Journal of Law in Context , Volume 7 , Special Issue 3: Health and Human Rights , September 2011, pp. 357 - 374
Copyright
Copyright © Cambridge University Press 2011

Introduction

Health care has been characterised as a basic necessity and as such is recognised as a basic human right. It is a core component of the right to health.Footnote 1 Access to publicly subsidised health care which is instrumental in the realisation of the right to health care, however, is normally contingent on membership in the national community. The significance of membership for the right to have rights is well established in the literature (e.g. Benhabib, Reference Benhabib2004; Bosniak, Reference Bosniak2006) and there is abundant research on access to health care for certain categories of foreign nationals such as asylum seekers (e.g. Norredam, Mygind and Krasnik, Reference Norredam, Mygind and Krasnik2006). However, while there is much literature on the subject of irregular migration (e.g. Bogusz, Cholewinski, Cygan and Szyszczak, Reference Bogusz, Cholewinski, Cygan and Szyszczak2004), the question of rights for irregular migrants has received limited attention in the European literature.Footnote 2 Yet irregular migrants constitute a very distinct and vulnerable group. They are foreign nationals who do not comply with immigration law requirements. Irregular migration covers a range of situations which include: clandestine arrival in the host state, staying beyond the permitted period of residence, or working without a permit or in a manner inconsistent with one's immigration status (Guild, Reference Guild, Bogusz, Cholewinski, Cygan and Szyszczak2004, p. 3). The term ‘irregular migrant’ also applies to people who enter on false papers, rejected asylum seekers who have exhausted their appeal rights and can no longer remain in the host state, and regularised migrants who fall back into an irregular situation (Cholewinski, Reference Cholewinski2006). Because they have breached immigration laws, irregular migrants are located outside the national community. Consequently, while they are physically present on the national territory, national laws and policies operate on the premise that they do not belong within the national community. As ‘outsiders within’, irregular migrants are ineligible for national membership and the rights it entails. Yet as persons, irregular migrants have rights.

The right to health care is a fundamental human right and as such is bestowed on irregular migrants. Thus the question of health care for irregular migrants has an inherent human rights dimension. Yet this comparative study of health-care provision for irregular migrants shows that France and the UK struggle with the idea of a right to health care for irregular migrants. The author posits that there are two primary reasons for this. States construe the right to health care as a membership right, which constrains the distribution of health-care resources to non-members. States' perception of irregular migrants as a threat to national sovereignty further frustrates their access to publicly subsidised health care and therefore the realisation of their human right to health care.

With this in mind, this article discusses the characterisation of the right to health care both as a membership and a human right with a view to assessing the significance of human rights for irregular migrants' access to health care. To this end, the article undertakes a comparative study of the French and UK approaches to health-care provision for irregular migrants. These jurisdictions possess common characteristics that make this comparison feasible. First, they have comparable socio-economic structures and are amongst the wealthiest states in the world.Footnote 3 Second, they are amongst the states with the largest number of migrants.Footnote 4 Third, both states have similar international human rights obligations. Finally, both have publicly funded health-care systems. Although there are significant differences between these two systems, both operate on the basis of membership rights. The focus on France and the UK is further justified by the fact that, notwithstanding their strong commonalities, their approaches to health-care provision for irregular migrants differ significantly. It is acknowledged that the comparison could have extended to other states such as Germany, but space constraints did not allow for greater inclusiveness. The choice of jurisdictions, however, provides a representative sample of host Western European states.

The article first considers migrants' eligibility for membership in the socio-economic domain and the implications for irregular migrants' access to health care. Then it looks at the right to health care as enshrined in international human rights law (IHRL). This is followed by an overview and discussion of health-care provision for irregular migrants in France and the UK. The author argues that these states' approaches evince an ambivalent rapport to human rights.

Migrants and national membership rights

National membership may be described as a state of belonging in the rights-granting community that is the nation state (Morris, Reference Morris2010). It was traditionally predicated on national citizenship, but the latter is no longer a necessary prerequisite for national membership. The divide between citizens and migrants in respect of membership, however, has not totally disappeared. There are two reasons for this. First, whilst national membership has become more inclusive in the socio-economic domain, it remains resilient in the political sphere. This may be explained by states' self-understanding as bounded nation states (Brubaker, Reference Brubaker1992, p. 28), which has shaped the concept of national citizenship. The latter has two functions. It serves an allocating function in the international order of nation states in that it assigns individuals to a specific state (Miller, Reference Miller1988, p. 652). Within the nation state, national citizenship is construed as the common ground that binds members together. It aims to encapsulate their privileged ties with and commitment to the national community and as such reflect their distinctive position vis-à-vis the nation state. As the primary bearers of citizenship duties,Footnote 5 citizens have a claim to full membership rights (Janoski, Reference Janoski1998, pp. 54–56). In contrast with citizens, migrants' relationship with the nation state is deemed more remote. As foreign nationals, they are ascribed to the political community of their state of nationality. Consequently they are located outside the national political communityFootnote 6 and are denied political rights such as the rights to vote and stand for elections.Footnote 7 Second, while national citizenship is no longer a prerequisite for membership in the socio-economic domain, migrants' position vis-à-vis the nation state remains relevant and their eligibility depends on their immigration status. Significantly, residence in the host state must be both lawful and sufficiently stable.Footnote 8 It follows that permanent regular migrantsFootnote 9 have been granted similar membership rights as citizens in the socio-economic domain (Brubaker, Reference Brubaker1992, p. 182). Conversely, irregular migrants are ineligible for membership across all spheres of national life on account of their immigration status. Their ineligibility for membership is rooted in states' perceptions of irregular migration as a threat to the external and internal dimensions of national sovereignty, namely the nation state's power to control its borders and the national community's right to self-determination (Dauvergne, Reference Dauvergne2004, p. 601). This causes irregular migrants to be located outside the national community, which renders them ineligible for national membership.

Irregular migrants' ‘othering’ on account of their immigration and their ensuing lack of membership causes their exclusion from the welfare state. This is because the welfare state operates on the basis of membership rights. Its primary goal is to address members' claim to welfare. As non-members, irregular migrants cannot partake in the redistribution of welfare. This in turn constrains their access to national health-care systems, as these form part of the welfare state. As attitudes become more hostile to immigration in many European states (Cole, Reference Cole2007, p. 270), objections to irregular migrants' access to publicly funded health care have become stronger. The crisis of the welfare state, and in particular the crisis of national health-care systems, further bolsters these objections (e.g. Le Faou, Reference Le Faou2003). Banting and Kymlicka point out that

‘there are important variations in the attitude towards the claims of different immigrant groups. Public debates in many countries distinguish “good” immigrant groups, who are seen as hard-working and law-abiding …, from “bad” immigrant groups, who may be seen as illegal or lazy, or as prone to crime.’ (Reference Banting, Kymlicka, Banting and Kymlicka2006, p. 8)

Because of their immigration status, irregular migrants fall within the latter category (Demleitner, Reference Demleitner1997–1998, p. 45; Lopez, Reference Lopez2000, p. 651). While there is no space to critique extensively the othering of irregular migrants on account of their immigration status, it is important to stress that there continues to be a ‘settled’ population of irregular migrants in states such as France and the UK.Footnote 10 The reasons for this are many and complex. They relate to the difficulties inherent in border control (e.g. Taran and Geromini, Reference Taran and Geromini2003) as well as in states' failure to recognise and respond to the realities and complexities of migration, and in particular to the combined effect of continuous demand for a cheap and flexible workforce and the persistence of worldwide wealth inequalities on migratory patterns (Kostakopoulou, Reference Kostakopoulou, Bogusz, Cholewinski, Cygan and Szyszczak2004). Reliance on an irregular migrant workforce has become a de facto component of states' employment policies (Legomsky, Reference Legomsky1994–1995, p. 1469). In developed countries, the demand for a cheap, low-skilled workforce remains strong in a number of sectors of the economy.Footnote 11 This is because their employability is closely linked to their exploitability (Neuman, Reference Neuman1996, p. 185). Yet, because of their immigration status, irregular migrants' contributions are counted as evidence of their transgression of immigration laws rather than being regarded as actual contributions (Dauvergne, Reference Dauvergne2004, p. 601).

Irregular migrants' lack of membership does not mean that they are totally lacking in rights. As persons, they have rights which include the human right to health care.

The human right to health care

The right to health care is a core component of the right to health.Footnote 12 This right is enshrined in a number of international human rights instruments.Footnote 13 Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) provides the most authoritative articulation of the right to health. Article 12(1) ICESCR recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. Its normative content was clarified by General Comment 14 of the Committee on Economic, Social and Cultural Rights (General Comment 14). This article focuses on aspects relating to the right to health care.

The realisation of the right to health is subject to four basic principles: availability, accessibility, acceptability and quality. Availability requires, inter alia, access to sufficient functioning public health-care facilities, goods and services.Footnote 14 Accessibility has four overlapping dimensions. First, access to health care must be on a non-discriminatory basis.Footnote 15 Non-discrimination is central to the exercise and enjoyment of the rights recognised in the ICESCRFootnote 16 and is therefore central to the realisation of the right to health care.Footnote 17 Health care must be accessible to all, ‘especially the most vulnerable or marginalized [groups]’.Footnote 18 While General Comment 14 does not explicitly refer to irregular migrants, this group has been identified as being of particular concern.Footnote 19 Article 2(2) ICESCR proscribes discrimination on the basis of any status. General Comment 14 specifies that ‘States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including … illegal immigrants.Footnote 20 to preventive, curative and palliative health services’.Footnote 21 This is reiterated in General Recommendation 30 of the UN Committee on the Elimination of Racial Discrimination on discrimination against non-citizens.Footnote 22 It stresses that, whilst states parties to the Convention on the Elimination of All Forms of Racial Discrimination (CERD) may differentiate between citizens and non-citizens,Footnote 23 differentiation in the rights mentioned in Article 5 is subject to international human rights standards.Footnote 24 One of these rights is the right to public health, medical care, social security and social services.Footnote 25 In this respect, it is recommended that states parties to the CERD ‘[r]emove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health.Footnote 26 Second, accessibility requires that states guarantee physical access to, inter alia, health care.Footnote 27 Third, accessibility implies affordability: ‘Payment for health-care services … [must] be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups.’Footnote 28 Irregular migrants' socio-economic circumstances are such that they cannot usually afford to pay for health care (Centre for European Policy Studies, 2010, p. 19). Last, accessibility necessitates access to information on health care and more broadly on the right to health.Footnote 29 Acceptability means that ‘[a]ll health facilities, goods and services must be respectful of medical ethics and be culturally appropriate’.Footnote 30 They must also ‘be scientifically and medically appropriate’ as per the principle of quality.Footnote 31

General Comment 14 sets out the obligations arising from Article 12 ICESCR, which include core obligations. Like any other human right, the right to health care, and more broadly the right to health, generate three types of obligations, namely the obligations to respect, protect and fulfil.Footnote 32 The obligation to respect requires, inter alia, that states ‘refrain from interfering directly or indirectly with the enjoyment of the right to health’.Footnote 33 The obligation to protect requires that states take measures to prevent third parties' interferences.Footnote 34 Finally, ‘the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health’.Footnote 35 Article 2(1) ICESCR provides for the progressive realisation of rights to the maximum of states parties' resources. Article 2(1), however, does not apply to core obligations. Moreover, progressive realisation does not preclude the imposition of immediate obligations on states (CESCR, 1990, para. 1).Footnote 36 These include the obligations to exercise the right to health without discrimination and to take steps towards its full realisation.Footnote 37 General Comment 14 further specifies that

‘[t]he progressive realization of the right to health over a period of time should not be interpreted as depriving States parties’ obligations of all meaningful content. Rather, progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12.'Footnote 38

States' unwillingness to use the maximum of their resources constitutes a systematic violation of Article 12.Footnote 39 States parties which are unable to meet fully their obligations must show that every effort was made to use all their available resources.Footnote 40 Importantly, resource constraints cannot ‘under any circumstances whatsoever, justify [States’] non-compliance with the core obligations set out in paragraph 43 … which are non-derogable'.Footnote 41 ‘States parties [to the ICESCR] have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant.’Footnote 42

Initially the core obligations arising from the right to health care were primarily concerned with the provision of primary health care for all.Footnote 43 These obligations, however, have grown over the years. General Comment 14 sets out the core obligation to ‘ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups’.Footnote 44 Having identified core obligations, General Comment 14 lists a number of more specific obligations which are deemed of ‘comparable priority’. Those pertaining to the right to health care are to:

(a) … ensure reproductive, maternal (pre-natal as well as post-natal) and child health care;

(b)… provide immunization against the major infectious diseases occurring in the community; [and]

(c)… take measures to prevent, treat and control epidemic and endemic diseases …’Footnote 45

It follows that health-care provision for irregular migrants in states parties to the ICESCR should, at the very least, meet Article 12 core obligations, notwithstanding their immigration status and lack of national membership.

Irregular migrants' access to health care in France and the UK

National health-care systems in both France and the UK aim to meet the health-care needs of regular residents. In France, however, irregular migrants may have access to health care through a distinct scheme. In the UK, irregular migrants' access to publicly subsidised health care remains an exception to the rule that makes eligibility contingent on lawful residence.

Irregular migrants' access to health care in France

French residents are covered by compulsory public health insurance.Footnote 46 Eligibility rests on two main criteria: lawful residence and occupational status.Footnote 47 Because they do not satisfy the first criterion, irregular migrants are not insured. However, French law provides for their access to health care through state medical assistance (Aide médicale d'État; AME).Footnote 48 Moreover, French law provides for the regularisation of those migrants who suffer from an exceptionally serious medical condition and cannot obtain adequate treatment in their country of origin.Footnote 49 The AME is means-tested and for the time being entitles people to free health care.Footnote 50 Increases in the number of AME users,Footnote 51 as well as cost-cutting policies, gave rise to reforms from 2002, which all restricted access to the AME. Originally AME applicants could establish their resources as well as their identity and residence in France by means of statements (déclarations sur l'honneur). Applicants, however, must now submit comprehensive evidence.Footnote 52 This reform was strongly criticised for being impracticable owing to irregular migrants' circumstancesFootnote 53 and for deliberately hampering their access to health care (GISTI Groupe Protection Sociale, 2000, pp. 13–22).Footnote 54 Moreover, French law now requires that irregular migrants, with the exception of pregnant women, children and people suffering from serious illnesses, contribute towards the cost of their health care.Footnote 55

The end of free health care for AME beneficiaries was denounced as an attempt to use the threat of ill-health as a repressive measure against irregular migrants (Bissuel, Reference Bissuel2003). The French government argued that this reform aimed to help control and reduce health expenditure and make AME users more responsible (Bissuel, Reference Bissuel2003). Significantly, this reform marked the end of the principle of free access to health care for the poorest groups of society irrespective of nationality and legal status. This principle had been enshrined in French law since the end of the nineteenth century.Footnote 56 The necessary implementing measures have yet to be adopted. Thus, for the time being, AME beneficiaries continue to have access to free health care. Eligibility conditions were further tightened and AME applicants must now provide evidence of continuous residence in France for a minimum period of three months, save in cases of emergency.Footnote 57 The three-month residence requirement, however, had to be lifted in respect of minors following decisions of the Conseil d'État Footnote 58 and the European Committee of Social Rights.Footnote 59 Registration with the AME is for one year, but is renewable.Footnote 60

In November 2010, the French National Assembly adopted amendments to the Loi de finances for 2011 which make further changes to the AME.Footnote 61 A €30 registration fee per adult was introduced.Footnote 62 Hospital care that exceeds the maximum cost set out in governmental decrees is subject to the préfet's authorisation;Footnote 63 this does not apply to minors and in cases where treatment cannot wait. Finally, health-care services which are not intended to directly treat or prevent diseases – such as fertility treatment – may be excluded from the AME.Footnote 64 The National Assembly rejected an amendment which sought to restrict drastically the personal, material and temporal scope of the AME.Footnote 65 According to this amendment, the AME could only cover the applicant, his or her partner and his or her children. To date, other family members such as the applicant's parents may benefit from the AME.Footnote 66 Moreover, the amendment limited the health-care services available through the AME to urgent treatment, save in respect of children. It also reduced the initial registration period from one year to three months.

Irregular migrants' access to health care in the UK

The National Health Service (NHS) provides health care which is free at the point of delivery.Footnote 67 Eligibility for free NHS health care is conditional on being ordinarily resident in the UK.Footnote 68 The test for ordinary residence was set out in R. v. Barnet LBC Ex p. Shah (Nilish). Lord Scarman ruled that

‘“ordinarily resident” refer[red] to a man's abode in a particular place or country which he ha[d] adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’Footnote 69

Significantly, unlawful residence constitutes a bar to ordinary residence.Footnote 70 People who are not ordinarily resident are described as overseas visitors.Footnote 71 They must normally pay for NHS treatment.Footnote 72 This charging policy applies across the UK notwithstanding the devolution of health-care provision.Footnote 73 Because they reside in the UK unlawfully, irregular migrants are not considered ordinarily resident and consequently do not normally qualify for free NHS health care. In contrast with France, there is no specific provision for irregular migrants' access to health care. Thus it is necessary to ascertain whether they may have access to free NHS health care as overseas visitors. At this juncture, one must distinguish between NHS hospital services and NHS primary medical services.

In principle, overseas visitors are liable to pay for NHS hospital treatment.Footnote 74 Some hospital services, however, are always exempted from charges irrespective of the patient's health-care status. These are treatment for certain infectious diseases,Footnote 75 compulsory psychiatric treatmentFootnote 76 and treatment in Accident and Emergency departments.Footnote 77 Family planning services are also exempted from charges.Footnote 78 Certain categories of overseas visitors are exempt from charges.Footnote 79 Until 2004, foreign nationals who had spent the previous twelve months in the UK, whether legally or illegally, were entitled to free NHS hospital treatment. This is now conditional on lawful residence.Footnote 80 Consequently, irregular migrants are liable to pay for hospital treatment, save in respect of exempted services. This begs the question whether treatment may be withheld pending payment or refused if payment cannot be secured. Here it is necessary to distinguish between England and Wales, on the one hand, and Scotland on the other hand.Footnote 81 In England and Wales, the answer to the question varies with the kind of treatment required by the patient. There are three types of treatment: immediately necessary, urgent and non-urgent treatment (Department of Health, 2 April 2009). Treatment is deemed immediately necessary when it is needed to save the patient's life, ‘prevent a condition from becoming immediately life-threatening’ or ‘prevent permanent serious damage from occurring’ (Department of Health, 2010, p. 9). It extends to maternity treatment (Department of Health, Reference Cholewinski2010, p. 10).Footnote 82 Immediately necessary treatment can never be withheld or denied (Department of Health, 2 April 2009), but it is limited to what is necessary to allow the patient to return to his or her home country (Department of Health, 2 April 2009). Urgent treatment refers to treatment which clinicians do not consider immediately necessary, ‘but which cannot wait until the person can be reasonably expected to return home’ (Department of Health, 2 April 2009). Urgent treatment should not be delayed or cancelled for the purpose of securing payment (Department of Health, 2 April 2009). Non-urgent treatment is ‘routine elective treatment’ which can wait until the person returns to his or her home country (Department of Health, 2 April 2009). In all cases, clinicians must determine how long the overseas visitor is likely to remain in the UK. In R (on the application of YA) v. Secretary of State for Health, the Court of Appeal ruled that the Department of Health (DH) guidance lacked clarity in this respect.Footnote 83 Subsequent interim guidance stated that the assessment should take into account the patient's plans, intentions or ability to return home (Department of Health, 2 April 2009). Where it is particularly difficult to estimate the return date, NHS bodies are advised to assume that the overseas visitor will remain in the UK for a maximum period of six months. This corresponds to the standard validity period of a visitor visa (Department of Health, 2010, para. 3.18). The assessment of treatment as non-urgent must be reviewed where the overseas visitor informs the NHS that his or her return has been postponed for ‘valid reasons’ or where his or her condition ‘unexpectedly changes’ (para. 3.19). The author posits that the DH Draft Guidance is ill-adapted to irregular migrants' circumstances. Most of them will remain in the UK for more than six months. Moreover, ‘valid reasons’ are likely to be confined to circumstances outside the control of overseas visitors.Footnote 84 This would exclude economic betterment, which is one of the main reasons for irregular migrants' presence in the host state. Consequently, reviews of the type of treatment needed by irregular migrants are likely to be limited to cases where their health has deteriorated.Footnote 85 The author argues that the inadequacy of the DH Guidance stems from the UK government's view that health-care provision may encourage irregular migration as well as health tourism (Department of Health, February 2010, pp. 3, 5, 15, 17–19). In Scotland, ‘[h]ealthcare providers are strongly advised to check the residency status of all patients seeking treatment’ (Scottish Government, 2010, p. 4).Footnote 86 Overseas visitors must be informed from the outset that they may be liable for charges and must be asked to sign an undertaking that they agree to it before treatment commences (p. 4). Scottish guidance, however, does not deal with situations where payment cannot be secured and with the consequences for access to treatment.

General practitioners (GPs) have a duty to provide immediately necessary and urgent treatment free of charge to all.Footnote 87 In respect of other types of treatment, GPs have discretion to register overseas visitors as NHS patients or to treat them privately.Footnote 88 The latter option is favoured by the UK and devolved governments on the grounds that eligibility for free health care is, in principle, reserved to people who are ordinarily resident in the UK.Footnote 89 It is also encouraged where overseas visitors have travelled to the UK specifically to seek treatment there.Footnote 90 Most irregular migrants, however, cannot afford private treatment, which makes registration as an NHS patient their only viable option. When applying to become an NHS patient, there is no formal requirement to prove identity or immigration status. In practice, however, GP surgeries are increasingly asking for proof of identity, residence status and/or address. These are requirements that irregular migrants struggle to satisfy, which hampers their access to primary care.Footnote 91 In 2004, the DH considered excluding overseas visitors from free NHS primary medical services in England, save in respect of urgent and immediately necessary treatment (Department of Health, 2004). The aim was to strengthen the link between free use of the NHS and UK citizenship or residency (Department of Health, 2004). In 2010, however, the government decided that there should be no change to the current rules on overseas visitors' eligibility for free NHS primary care for the time being (Department of Health, 2010, p. 4 and Annex 4).

Irregular migrants may have access, albeit limited, to free NHS health care as overseas visitors. Moreover, like other foreign nationals, they may be granted discretionary leave to remain in the UK on medical grounds (UKBA, 2003).Footnote 92 However, this is contingent on their meeting the high threshold set out by Article 3 of the European Convention on Human Rights (ECHR).Footnote 93

Discussion

This comparative study shows that the question of health-care provision for irregular migrants is nested within national debates on immigration and the welfare state. Yet the recognition of the right to health care as a basic human right means that this question has an inherent human rights dimension. The author posits that, while France and the UK do not ignore their international human rights obligations, restrictions on irregular migrants' access to publicly funded health care on account of their immigration status threatens compliance with IHRL. The author argues that this evinces an ambivalent approach to human rights on the part of both states. With this in mind, the author first examines whether these jurisdictions meet their international human rights obligations. Having established that restrictions on irregular migrants' access to health care jeopardise compliance, the author discusses the rationale for such restrictions. Finally, having identified that restrictions are rooted in states' perception of irregular migrants as a threat to national sovereignty, the author looks at the interface between IHRL and the government's immigration power and contends that these may be reconciled.

Compliance with IHRL

The author argues that, while France and the UK take account of their international human rights obligations, restrictions on irregular migrants' access to publicly subsidised health care endangers compliance with IHRL in both states. For example, in the UK, GPs' discretion to register overseas visitors as NHS patients as well as onerous registration practices may hamper irregular migrants' access to primary health care and immunisation programmes.Footnote 94 Likewise, in France, ill-adapted procedures may hinder access to health care for this group (GISTI Groupe Protection Sociale, 2000, pp. 13–22; IGF, 2010, pp. 3–4). Yet the core obligations arising from Article 12 ICESCR require that states ensure access to primary health care, maternity care, immunisation against major infectious diseases and treatment against epidemic and endemic diseases for all.Footnote 95 Moreover, barriers on access may engage the obligation to adopt appropriate legislative and administrative measures.Footnote 96 Compliance with Article 12 ICESCR also demands adherence to the principles that underpin the realisation of the right to health care. Importantly, the principle of accessibility requires, inter alia, that health care be affordable to all.Footnote 97 In this regard, it is argued that the introduction of an AME registration fee, particularly if combined with charges, could render health care unaffordable for many irregular migrants in France (Favereau, Reference Favereau2010). The same issue arose in respect of the UK government's proposals to charge overseas visitors, and consequently irregular migrants, for primary health care (Department of Health, 2004). As discussed above, charging policies in both France and the UK aim to protect the national interest by directing resources at members. However, while resource considerations cannot be dismissed, their impact on health-care provision for irregular migrants must be appraised in the light of states' international human rights obligations. Significantly, resource shortages do not absolve states from their obligations under the ICESCR.Footnote 98 In particular, they cannot justify non-compliance with non-derogable obligations.Footnote 99 Accessibility further implies access to information on health care.Footnote 100 Yet irregular migrants' access to information is poor in both jurisdictions (Observatoire Européen de l'Accès aux Soins de Médecins du Monde, 2007, pp. 6, 31–34).Footnote 101 The author contends that, while France and the UK do not ignore their international obligations, these are construed as constraints on these states' approaches to health-care provision for irregular migrants and consequently on the exercise of their immigration power.

Rationale for restrictions on health-care provision for irregular migrants

States characterise the right to health care as a membership right. Thus access to publicly funded health care is normally reserved to members and the distribution of health-care resources to non-members is set against competing national priorities for limited resources. This comparative study shows that the polarisation of members' and non-members' interests and consequently objections to the distribution of health-care resources to non-members are exacerbated in the case of irregular migrants. This is because they are seen as a threat to national sovereignty.

Approaches to health-care provision for irregular migrants in both France and the UK reflect their location outside the national community on account of their immigration status, albeit in different ways. France sets irregular migrants apart from members by providing health care through a separate scheme. In the UK, irregular migrants lack visibility. This state makes no specific provision for their access to health care, but they may be eligible for free NHS health care as overseas visitors. In both jurisdictions, restrictions on health-care provision for irregular migrants seek to protect members' interests. In particular they aim to alleviate the burden that irregular migrants are deemed to place on national health-care resources (Lopez, Reference Lopez2000, p. 651). The negative traits ascribed to irregular migrants foster the idea that they are a drain on national health-care resources. Yet the author posits that these restrictions not only frustrate the full realisation of irregular migrants' human right to health care, they also harm members' interests. The author argues that the systematic polarisation of members' and irregular migrants' interests in the field of health care may be challenged.

There is evidence that these groups' interests may converge. Medical practice shows that early treatment and preventive health care for all residents is critical to maximising treatment efficiency and avoiding unnecessary costs to health-care systems (Gittler, Reference Gittler1994, pp. 117–21; IGF, 2010, pp. 17–18). Further evidence of convergence may be found in the field of public health. In both jurisdictions, irregular migrants are eligible for free preventative and curative treatment in respect of pandemic and endemic diseases. Exclusionary policies would indeed jeopardise public health protection (Legomsky, Reference Legomsky1994–1995, p. 1465). Yet restrictions on irregular migrants' access to health care in both jurisdictions may jeopardise public health. For example, in France, opponents to the AME reform pointed out that increasingly stringent registration requirements would in many cases be tantamount to exclusion and would consequently engage the principle of public health protection (FIDH, 2003, Annex 3).Footnote 102 Furthermore, data does not support the assumption that irregular migrants are a drain on health-care systems. On the contrary, data shows that usage of health-care services is low amongst this population and that they tend essentially to resort to these services in cases of emergency (Observatoire Européen de l'Accès aux Soins de Médecins du Monde, 2007). The reasons for this are many. Most irregular migrants have little or no knowledge of their rights and health-care personnel may be poorly informed (pp. 6, 31–34). Access to health care may also be hindered by convoluted procedures (p. 34) and language barriers (p. 6). Another significant impediment lies in irregular migrants' anxiety that contact with official authorities and structures, including health-care services, might bring their presence to the attention of the immigration authorities (MacPherson and Gushulak, Reference MacPherson and Gushulak2004, p. 8).

The human right to health care and the government's immigration power

This comparative study shows that immigration policy objectives profoundly shape states' approaches to health-care provision for irregular migrants. Consequently, restrictions on their access to health care are construed as an affirmation of the government's immigration power. France and the UK both share the view that the availability of minimum social rights for irregular migrants encourages illegal movements of population (Department of Health, February 2010, p. 1) as well health tourism.Footnote 103 For this reason, these states perceive international human rights obligations as constraints on the exercise of their immigration power and are reluctant to envisage irregular migrants as rights-bearers. This explains why French and UK policy documents on health-care provision make scant references to IHRL and why they do not mention the human right to health care.Footnote 104

The author posits that governments' ambivalent approach to human rights rests on a misleading account of the interface between IHRL and the exercise of the government's immigration power. Indeed, this power has a bearing on the normative content of IHRL. Notwithstanding its universal premise, IHRL forms part of international law and as such is state-centred in nature. It follows that IHRL is profoundly shaped by two recurrent principles of international law, namely the ‘State consent supernorm’ (Buchanan, Reference Buchanan2001, p. 688), which relates to the state's primary role in the creation, implementation and enforcement of international law, and national sovereignty (Meckled-García and Çali, Reference Meckled-García, Çali, Meckled-García and Çali2005, pp. 17–18). The state-centred nature of IHRL explains its inability to make legal status in the nation state irrelevant. IHRL does not compel states to confer the full set of human rights on all persons (p. 18). The influence of the government's immigration power on IHRL is apparent in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Migrant Workers Convention). The Convention confers basic rights on all migrants, but enhanced rights are only granted to regular migrants.Footnote 105 The right to health care is bestowed on all migrants on an equal basis with nationals (Article 28). This right, however, is confined to ‘medical care urgently required for the preservation of … life or the avoidance of irreparable harm to … health’.Footnote 106 Significantly, Article 28 does not incorporate all the core obligations arising from Article 12 ICESCR. Equality of treatment with nationals in respect of general access to health-care services is reserved to regular migrants.Footnote 107 This status-based differentiation sought to affirm the states' immigration power.Footnote 108

IHRL has not abolished divides arising from legal status in the nation state. What IHRL does, however, is to set out minimum standards below which states shall not fall. It is posited that characterising these minimum standards as constraints on the government's immigration power amounts to questioning the very idea of human rights. The French government was reminded of this in International Federation of Human Rights Leagues (FIDH) v. France,Footnote 109 a case brought under the Revised European Social Charter (the Charter). The collective complaint was lodged following the 2002 AME reform. The FIDH contended that requiring financial contributions from irregular migrants and denying children immediate access to the AME save in emergency cases breached Articles 13 (right to social and medical assistance) and 17 (right of children and young persons to social, legal and economic protection) of the Charter.Footnote 110 The French government rejected these arguments on the basis that irregular migrants fell outside the personal scope of the Charter.Footnote 111 The Appendix to the Charter (point 1) provides that rights are conferred on ‘foreigners only in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’. The FIDH argued that the condition relating to lawful residence was only relevant to equal treatment with nationals.Footnote 112 The European Committee of Social Rights (the Committee) stressed that health care was a prerequisite for the preservation of human dignity.Footnote 113 The Committee found that France had not breached Article 13 because irregular migrants were not deprived of all entitlement to medical assistance.Footnote 114 The Committee, however, held that France had fallen short of its obligations under Article 17 by depriving irregular migrants' children from immediate access to health care.Footnote 115 Barriers on children's and adolescents' access to health care were subsequently lifted by the French government (Circulaire DHOS/DSS/DGAS, 2005).Footnote 116 The Committee reached its conclusion by a majority of one. Six out of the thirteen Committee members took the view that irregular migrants' inclusion in the personal scope of the Charter went against the letter of the Appendix.Footnote 117 The reasoning of the majority, however, sought to affirm the universality and fundamental character of respect for human dignity.Footnote 118

Conclusion

The author argues that France's and the UK's approaches to health-care provision for irregular migrants evince an ambivalent response to human rights. In both jurisdictions, IHRL contributes to delineating the extent of irregular migrants' access to health care. Yet their lack of national membership constrains the realisation of their human right to health care. This comparative study shows that, whilst irregular migrants' immigration status does not constitute an absolute bar to access to health care, states are reluctant to distribute limited national resources to individuals they locate outside the national community. Consequently, irregular migrants' and members' interests are systematically polarised and health-care provision for irregular migrants is set against competing national policy objectives. This, it is argued, makes irregular migrants' access to health care particularly vulnerable to curtailments, which in turn jeopardises the realisation of their human right to health care. For this reason, the author calls for the development of a human rights approach to health-care provision for irregular migrants.

The author does not suggest that the question of health-care provision for irregular migrants should be totally disentangled from debates on migration, national health-care systems and the welfare state. What is proposed is a reassessment of the weight given to these considerations with a view to ensuring compliance with IHRL and asserting the person as a source of rights. The author posits that states' failure to envisage irregular migrants as rights-bearers not only engages their international human rights obligations, it also conflicts with the universal premise at the heart of IHRL. This comparative study shows that states' reluctance to consider irregular migrants' as rights-bearers is rooted in their characterisation as a threat to national sovereignty. Yet the author contends that the exercise of the government's immigration power may be reconciled with international human rights obligations. Indeed, IHRL does not and cannot make legal status in the nation state irrelevant. Significantly, Article 12 ICESCR does not require equality between members and non-members. What IHRL does, however, is to carve out a zone of protected personhood.

The author posits that the development of a human rights approach requires that states re-evaluate the significance of their immigration power for the treatment of irregular migrants in the socio-economic domain in line with their international human rights obligations. This, in turn, demands of states that they cease to reduce irregular migrants to a threat and reappraise the nature of their interaction with the national community. This, it is argued, constitutes the greatest challenge.

Footnotes

1 Committee on Economic, Social and Cultural Rights, General Comment 14 (2000), ‘The Right to the Highest Attainable Standard of Health’, UN Doc. E/C.12/2000/4 (11 August 2000) paras 4, 11. The right to health extends to the underlying determinants of health such as access to safe and potable water and adequate sanitation (para. 11). For a comprehensive analysis of the right to health, see Toebes (Reference Toebes1999).

2 There is more literature in the US; see, e.g., Lopez (Reference Lopez2000).

3 Both states are members of the G8.

4 Estimated numbers of migrants for 2010 in France and the UK are respectively 6.7 and 6.5 million (IOM, countries hosting the largest number of international migrants in 2010). Data on irregular migrant numbers is scant and unreliable. The central estimate of the number of irregular residents in the UK at the end of 2007 was 618,000 (Gordon et al., Reference Gordon, Scanlon, Travers and Whitehead2009). In France, estimates vary between 200,000 and 400,000 for 2007 (Van Eeckout, Reference Van Eeckout2008).

5 Citizenship duties include obedience to the law, paying taxes and military service.

6 For a critique of migrants' exclusion from political membership, see, e.g., Rubio-Marín (Reference Rubio-Marín2000, p. 58).

7 EU citizens have the right to vote and stand in municipal and European elections in the Member State of residence (Art. 22 Treaty on the Functioning of the European Union). This right, however, does not extend to general elections.

8 For a critique of this legal approach to the concept of residence, see, e.g., Rubio-Marín (Reference Rubio-Marín2000, p. 22) and Hammar (Reference Hammar1990, pp. 194–95).

9 Hammar coined the word denizen to describe the legal status of regular migrants who are long-term residents; see Hammar (Reference Hammar1990, pp. 12–13).

10 For figures in the UK and France, see respectively Gordon et al. (Reference Gordon, Scanlon, Travers and Whitehead2009) and Van Eeckout (Reference Van Eeckout2008).

11 These include agriculture, food-processing, construction, textile and service industries (e.g. domestic work); see, e.g., Taran and Geromini (Reference Taran and Geromini2003, pp. 3–4).

12 General Comment 14, paras 4, 11.

13 These instruments include The Universal Declaration of Human Rights (Article 25), the 1979 Convention on the Elimination of all Forms of Discrimination against Women (Article 12) and the 1989 Convention on the Rights of the Child (Article 24).

14 General Comment 14, para. 12(a).

15 Ibid., para. 12(b).

16 Articles 2(2) and 3 ICESCR.

17 General Comment 14, paras 18, 19.

18 Footnote Ibid., para. 12(b). These groups include women, children, adolescents, the elderly and persons with disabilities (para. 12(b)).

19 Committee on the Elimination of Racial Discrimination, General Recommendation 30, ‘Discrimination Against Non Citizens’, Gen. Rec. No. 30 (General Comments) (1 October 2004).

20 Emphasis added.

21 General Comment 14, para 34.

22 Committee on the Elimination of Racial Discrimination, UN, General Recommendation 30, ‘Discrimination Against Non Citizens’, Gen. Rec. No. 30 (General Comments) (1 October 2004).

23 Article 1(2) CERD.

24 General Recommendation 30, paras 2, 3.

25 Article 5(e)(iv) CERD.

26 General Recommendation 30, para. 29 (emphasis added).

27 General Comment 14, para. 12(b).

28 Footnote Ibid.

29 Footnote Ibid.

30 Footnote Ibid., para. 12(c).

31 Footnote Ibid., para. 12(d).

32 Footnote Ibid., para. 33.

33 Footnote Ibid.

34 Footnote Ibid.

35 Footnote Ibid.

36 CESCR, General comment 3 (General Comments), ‘The Nature of States Parties Obligations (Art. 2, par. 1)’ (14 December 1990).

37 Footnote Ibid., para. 30.

38 Footnote Ibid., para. 31.

39 Footnote Ibid., para. 47.

40 Footnote Ibid.

41 Footnote Ibid.

42 Footnote Ibid., para. 43.

43 Declaration of Alma Ata, in World Health Organisation, ‘Primary Health-care: Report of the International Conference on Primary Health-care’ (1978), WHO, Geneva, pp. 3–4; General Comment 3, para. 10; General Comment 14, para. 43.

44 General Comment 14, para. 43(a).

45 Footnote Ibid., paras 44(a), (b) and (c).

46 The main insurance scheme is the Régime général de la sécurité sociale.

47 Code de la sécurité sociale (Partie Législative), chapter 3. French residents who do not meet the criterion relating to occupational status are covered by the Couverture maladie universelle (universal sickness cover).

48 Article L251-1 of the Code de l'action sociale et des familles.

49 Article L-313-11 of the Code de l'entrée des étrangers et du droit d'asile. The French government, however, has been criticised for its restrictive reading of this provision. See Observatoire du droit à la santé (May 2008, p. 35) ‘La Régularisation pour Raison Médicale en France, Un Bilan de Santé Alarmant, 1998–2008: Dix Ans d'Application du Droit au Séjour des Étrangers Malades, ODSE’. Available at: www.odse.eu.org/IMG/pdf/ODSE-rapport2008_.pdf (accessed 29 March 2011). Article L-313-11 must be applied in the light of France's human rights obligations, and in particular Art. 3 European Convention on Human Rights.

50 From 1 July 2010, annual resources shall not exceed €7,611 for one person and €11,417 for two.

51 The number of AME beneficiaries was close to 120,000 in September 2001 and close to 180,000 in September 2002 (Gissler et al., Reference Gissler, Azoulay, Havard, Sourlas, Chambeaud and Corlay2007, p. 5).

52 Décret No. 2005-859 relatif à l'aide médicale d'Etat and décret No. 2005-860 relatif aux modalités d'admission des demandes d'AME of 28 July 2005, Journal Officiel No. 175 of 29 July 2005, pp. 12353–54.

53 AME applicants are often unable to submit all the required documentary evidence (Gissler et al., 2007, p. 33).

54 Groupe d'Information et de Soutien des Immigrés (GISTI) Groupe Protection Sociale (May–June 2000) ‘L'Accès aux Soins des Étrangers: les Débats et les Évolutions du Droit’, Hommes et Migration, No. 1225. Available at: http://www.gisti.org/spip.php?article740 (accessed 6 may 2011).

55 The reform requires that AME beneficiaries pay the ticket modérateur. This corresponds to the fraction of the cost of health care that is borne by the patient.

56 Loi of 15 July 1893, Journal Officiel de la République Française, 18 July 1893, p. 3681.

57 Loi de finances pour 2003, No. 2002-1575 of 30 December 2002, Journal Officiel of 31 December 2002, p. 22025, Art. 97(1), incorporated in Article 251-1 of the Code de l'action sociale et des familles.

58 Conseil d'État, 1ère et 6ème sous-sections réunies, N° 285576, 7 June 2006. Available at: www.legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTexte=CETATEXT000008257562 (accessed 29 March 2011).

59 European Committee of Social Rights, International Federation of Human Rights Leagues (FIDH) v. France, 7 October 2004, Collective complaint No. 14/2003. Available at: www.echr.coe.int (accessed 29 March 2011).

60 Article 252-3 Code de l'action sociale et des familles.

61 Assemblée Nationale, Loi de finances pour 2011 – (n° 2824), amendments N° II – 11, N° II - 8 Rect, N° II – 9 Rect, and N°II – 7. These amendments had not been definitely adopted at the time this article was written.

62 Amendment N° II – 11. A report commissioned by the government indicates that this fee would be very costly to administer (Inspection générale des finances (IGF) and Inspection générale des affaires sociales (IGAS), 2010, p. 17). The report was only made public after the adoption of the amendment by the National Assembly.

63 Amendment N° II – 8 Rect. The préfet represents the state in each département.

64 Amendment N° II – 9 Rect. This amendment does not apply to minors.

65 Amendment N°II – 7.

66 80% of AME beneficiaries, however, are single men (IGF, 2010, p. 4).

67 National Health Service Act 1946 (c 81), UK.

68 National Health Service Act 2006 (c. 41), England and Wales s.175.

69 House of Lords, R. v. Barnet LBC Ex p. Shah (Nilish), 16 December 1982, [1983] 2 A.C. 309 para. 343G–H.

70 R. v. Barnet LBC Ex p. Shah (Nilish), 16 December 1982, [1983] 2 A.C. 309, paras 343G–344B.

71 National Health Service (Charges to Overseas Visitors) Regulations 1989, SI 1989, No. 306, reg.1(2).

72 The National Health Service Act 1977. UK, introduced powers to charge those who were not ordinarily resident in the UK.

73 The policies on overseas visitors' access to NHS health care examined in this section apply across the UK unless stated otherwise.

74 National Health Service (Charges to Overseas Visitors) Regulations 1989, England and Wales reg.7.

75 National Health Service (Charges to Overseas Visitors) Regulations 1989, England and Wales reg.3(c) and (d); Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005, Statutory Rule 2005 No. 551, reg.4(5)(d); and National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989, SI 1989, No. 364 (S.40), reg.3(c) and (d). As far as HIV is concerned, only the initial diagnostic test and associated counselling are free (National Health Service (Charges to Overseas Visitors) Regulations 1989 reg.3(d); Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005 reg.4(5)(e); and National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 Reg.3(d)). The Department of Health commissioned a review of the policy on charging for HIV treatment (Department of Health, 2010, p. 5). Treatment for pandemic flu was added to the list of exempted services (National Health Service (Charges) (Amendments Relating to Pandemic Influenza) Regulations 2009) England.

76 National Health Service (Charges to Overseas Visitors) Regulations 1989 England and Wales reg.3(e) and (f); Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005 reg.4(5)(f) and (g); and National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 reg.3(e) and (f).

77 National Health Service (Charges to Overseas Visitors) Regulations 1989 England and Wales reg.3(a); Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005 reg.4(5)(a); and National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 reg.3(a).

78 Department of Health (September 2009); Scottish Government (April 2010), Overseas Visitors' Liability to Pay Charges for NHS Care and Services', CEL(09) (2010), Scottish Government, Health-care Policy and Strategy Directorate, Patient Support and Participation Division; NHS Wales and Welsh Assembly Government (7 December 2009) ‘Implementing the Overseas Visitors Hospital Charging Regulations, Guidance for Hospitals in Wales’. Available at: http://wales.gov.uk/docs/dhss/publications/091209overseasguidanceversion6en.pdf (accessed 29 March 2011), p. 22.

79 These include refugees and asylum seekers. See National Health Service (Charges to Overseas Visitors) Regulations 1989 England and Wales reg. 4, 5 and 6; Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005 reg.3, 5, 6; and National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 reg.4, 5 and 6.

80 National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2004, SI 2004, No. 614, reg.4(1)(d) England. See also National Health Service (Charges to Overseas Visitors) (Scotland) Amendment Regulations 2004, No. 369, reg.3(b)(i); National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) Regulations 2004, No. 1433 (W. 146), reg.3(1)(d); and Provision of Health Services to Persons Ordinarily Resident Regulations (Northern Ireland) 2005 reg.3(c).

81 Northern Ireland has not adopted guidance on the charging of overseas visitors for NHS hospital services.

82 This includes antenatal routine treatment (Department of Health, 2010, p. 10). The government, however, remains of the view that charges for maternity care should not be abolished in respect of non-exempt patients (Department of Health, February 2010, p. 38).

83 R (on the application of YA) v. Secretary of State for Health [2009] EWCA Civ 229 para. 74.

84 The DH Draft Guidance acknowledges that certain circumstances may prevent return in certain circumstances. The Guidance, however, only refers to ‘conditions beyond [the] control [of overseas visitors]’ (Department of Health, 2010, para. 3.17).

85 The Welsh guidance appears more liberal in that it makes reassessment contingent on changes in the patient's circumstances (NHS Wales and Welsh Assembly Government, 2009, p. 10). The author, however, argues that a liberal reading is unlikely as this would be regarded as inconsistent with the UK government's immigration policy.

86 Scottish Government (2010) ‘Overseas Visitors’ Liability to Pay Charges for NHS Care and Services'. Available at: www.scotland.gov.uk/Topics/Health/OverseasVisitors (accessed 29 March 2011).

87 Health Service Circular (HSC) 1999/018, NHS Executive, UK, 1 February 1999, Overseas Visitors' Eligibility to Receive Free Primary Care, para. 3. This circular is now obsolete, but it still provides guidance. See also Welsh Health Circular 99 (32), Overseas Visitors' Eligibility to Receive Free Primary Care, 25 February 1999, para. 8; NHS Scotland (October 2010) ‘Health Care in Scotland for Holidaymakers from Overseas’. Available at: www.hris.org.uk/patient-information/information-about-health-rights/health-care-for-overseas-visitors/health-care-in-scotland-for-overseas-holidaymakers0/ (accessed 29 March 2011).

88 HSC 1999/018, paras 13–15. See also Welsh Health Circular 99 (32) 9n. 123, para. 7; and Scottish Government (2010).

89 Welsh Assembly Government (8 July 2005) ‘Overseas Visitors Eligibility to Receive Free Primary Care’, Welsh Assembly Government, Quality Standards and Safety Improvement Directorate.

90 HSC 1999/018, para. 15.

91 House of Lords and House of Commons, Joint Committee on Human Rights – Written Evidence (September 2006) ‘Memorandum from Médecins du Monde’ para. 46, point 5. Available at: www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/81/81we01.htm (accessed 29 March 2011).

92 Discretionary leave is normally granted for an initial period of three years. The period of leave may be shorter in some cases (e.g. where the applicant is awaiting surgery, after which Article 3 ECHR would no longer be engaged: UK Border Agency (UKBA) (October 2003) ‘Applications Raising Article 3 Medical Grounds’. Available at: www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apunotices/applicationsraisingarticle3.pdf?view=Binary (accessed 29 March 2011).

93 In N v. Secretary of State for the Home Department, [2005] UKHL 31, para. 93 Lord Brown indicated that the ECHR could not be read as imposing an obligation to provide medical treatment.

94 Immunisation services are generally offered in GP surgeries.

95 Declaration of Alma Ata; CESCR General comment 3; General Comment No. 14, paras 44(a), (b) and (c).

96 Footnote Ibid., para. 33.

97 Footnote Ibid., para. 12(b).

98 General Comment 14, para. 31.

99 Footnote Ibid., para. 47.

100 Footnote Ibid., para. 12(b).

101 Observatoire Européen de l'Accès aux Soins de Médecins du Monde (September 2007) ‘Enquête Européenne sur l'Accès aux Soins des Personnes en Situation Irrégulière’. Available at: www.mdm-international.org/spip.php?article112 (accessed 29 March 2011).

102 International Federation of Human Rights Leagues (FIDH) (March 2003) ‘Réclamation collective contre la France, Réformes de l'Aide médicale d'Etat (AME) et de la Couverture maladie universelle (CMU) contraires aux articles 13,17, E et G de la Charte Européenne Révisée, Saisine du Comité européen des droits sociaux du Conseil de l'Europe, Annexe 3, Argumentaire du Gisti sur l'inconstitutionnalité de la réforme AME et CMU’. Available at: www.fidh.org/communiq/2003/fr0503f.pdf (accessed 29 March 2011).

103 The UK government acknowledged that only ‘[a] small proportion of visitors’ engaged in health tourism (Department of Health, February 2010, p. 17).

104 See, e.g., Department of Health (February 2010); Gissler et al. (2007). None of these documents explicitly refers to Article 12 ICESCR.

105 Respectively Part III and IV of the Migrant Workers Convention.

106 The material scope of Article 28 was originally broader, but the phrase ‘or the restoration of their health’ was repealed at the request of the US delegation (Cholewinski, Reference Cholewinski1997, p. 168).

107 Migrant Workers Convention Part IV, Art. 43(1)(e).

108 Limited rights for irregular migrants, however, were not sufficient to appease the concerns of Northern American and Western European states and none of them has to date ratified or signed the Convention. The Migrant Workers Convention, which entered into force on 1 July 2003, has so far been ratified by 44 States and signed by 31.

109 European Committee of Social Rights, International Federation of Human Rights Leagues (FIDH) v. France, 7 October 2004, Collective complaint No. 14/2003. Available at: www.echr.coe.int (accessed 29 March 2011).

110 Footnote Ibid., paras 16–17 and 22–25.

111 Footnote Ibid., para. 18.

112 Footnote Ibid., para. 17.

113 Footnote Ibid., para 31.

114 Footnote Ibid., para. 33.

115 Footnote Ibid., paras 35–37.

116 Circulaire DHOS/DSS/DGAS, No. 2005-141 of 16 March 2005 relative à la prise en charge des soins urgents délivrés à des étrangers résidant en France de manière irrégulière et non bénéficiaires de l'aide médicale de l'Etat, Bulletin officiel du ministère chargé des affaires sociales n° 2005/4 pp. 170–72.

117 See, in particular, the dissenting opinion of Mr Rolf Birk (European Committee of Social Rights, International Federation of Human Rights Leagues (FIDH) v. France, 7 October 2004, Collective complaint No. 14/2003. Available at: www.echr.coe.int (accessed 29 March 2011).

118 European Committee of Social Rights, International Federation of Human Rights Leagues (FIDH) v. France, 7 October 2004, Collective complaint No. 14/2003. Available at: www.echr.coe.int (accessed 29 March 2011), para. 31.

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