Spanish Court On Exclusion of Migrants From Health Services


The Center for Economic and Social Rights (CESR), Amnesty International, Médicos del Mundo, Red Acoge, REDER and semFYC reiterate that the Royal Decree 16/2012 contravenes international human rights norms and standards, and is regressive with regard to the right to health.

Madrid/New York, 4 August de 2016: The Center for Economic and Social Rights, Amnesty International, Médicos del Mundo, Red Acoge, la Red de Denuncia y Resistencia al RDL 16/2012 (REDER) and the Spanish Society for Family and Community Medicine (semFYC) voice their concern over the judgement issued by the Constitutional Court of Spain last week which upholds Royal Decree 16/2012 (RDL 16) and confirms the exclusion of undocumented migrants from free access to health services.

The organizations regret the Constitutional Court’s decision to ignore international human rights treaties and recommendations issued by regional and international human rights mechanisms, especially given that the Spanish Constitution itself requires that the rights it contains be interpreted in the light of international treaties. On the contrary, the Constitutional Court ruling gives carte blanche for fundamental rights to be shaped according to the government’s general economic criteria.

The Constitutional Court, through this ruling, legitimizes the health reform under the premise of the existence of a “situation of urgent and extreme necessity” and of “grave economic difficulty without precedents since the creation of the National Health System”. In this sense, and without reference to the requirements of which Spain has been reminded on repeated occasions by both European and United Nations human rights bodies, the Court has considered it proportional to limit access to free health care for undocumented migrants – a sector that is among the most vulnerable in society – with the objective, according to the ruling, of preserving and maintaining the public health system. In this way, it consecrates a regressive vision, without sufficient justification, of the right to health in Spain.

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PICUM Roundtable: Sexual and Reproductive Health

By Tara Ohl, PICUM Trainee and Alyna Smith, PICUM Advocacy Officer

Among the obstacles undocumented migrants face in realising their fundamental rights are the multiple barriers to access health care, including sexual and reproductive health services.

Most EU member states limit access to emergency care only for undocumented migrants, while a limited number provide access to primary care. Where there is an entitlement to care, it tends to be for specific services – maternal care, or treatment for HIV and other communicable diseases – that are disconnected from any right to access primary care.

To draw attention to states’ duties under international and EU law with regard to the right to health, and the reality as well as the impact of undocumented migrants’ extremely limited access to health services in practice, PICUM launched a report entitled “The Sexual and Reproductive Health Rights of Undocumented Migrants: Narrowing the Gap Between Their Rights and The Reality in the EU”.

Together with Doctors of the World (MdM), International Planned Parenthood Federation (IPPF) European Network and the Center for Reproductive Rights, PICUM also invited key partners to meet in Brussels to discuss challenges needing urgent attention and strategies to address them in order to improve access to health services, generally, and to sexual and reproductive health care in particular, for undocumented migrants.

Sexual and reproductive rights as part of the right to health care

International and European human rights laws are clear: access to sexual and reproductive health services is a component of the right to health. States that deny undocumented migrants access to essential health care act contrary to their international obligations.

Under international human rights law, the right to health means that health services must be available, accessible, acceptable and of good quality. These conditions equally apply to sexual and reproductive health.

All EU member states have ratified international human rights treaties, which guarantee the right to health, and thus to sexual and reproductive health. In addition, the principle of non-discrimination applies in the area of health care, which means that states have a duty to guarantee the right to health for everyone residing within their territory. Restrictions, in law or in practice, that limit access to essential health services on the basis of migration status may breach the principle of non-discrimination.

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