Angelina Scialla, MA Student, Università Statale di Milano
“Where nation-states fail to take responsibility, we must act.”
(Vice-mayor of Athens, 2018)
In recent times, cities and local authorities have been recognised as crucial for the implementation and protection of human and social rights of migrants, especially those with an irregular status. Their intervention has interested a vast number of domains, from education to freedom of movement and social participation. The focus of this article will be two of the most fundamental social rights, those to housing and healthcare. They could be considered particularly essential as the need for a safe shelter and the treatment of any ongoing health issue are among the first concerns for any migrant upon arrival.
Definition of migrant with irregular status
Irregular migrants or migrants with irregular status are defined in Europe as: “third country nationals’ – individuals from outside of the European Union and the European Economic Area – who either have entered a European country without authorisation (‘irregular entrants’), or who entered with a valid entry permit, but whose rights to stay have lapsed (‘overstayers’).”(1)
The number of migrants with irregular status in Europe is hard to define, and the most recent estimate dates back to 2008, when around 1.9 to 3.8 million irregular migrants lived in the EU, mostly in urban areas.
Law framework for housing rights of irregular migrants
- International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11.
(“the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing”)
This UN treaty was ratified by all 27 EU Member states in 1966, entered into force in 1976, and applies to irregular migrants as well.
- International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 5.
(the right of everyone to enjoy “economic, social and cultural rights, in particular: […] the right to housing.”)
This UN treaty was ratified by all 27 EU Members in 1965, entered into force in 1969 and applies to irregular migrants as well.
- European Social Charter (ESC), Article 31 – The right to housing.
(“the Parties undertake to take measures […] to promote access to housing of an adequate standard; to prevent and reduce homelessness with a view to its gradual elimination; to make the price of housing accessible to those without adequate resources.”)
The ESC is a Council of Europe treaty which first entered into force in 1965, and after its revision it allowed states to select the articles by which they will be bound. Only 7 countries have signed up to Article 31: Italy, Lithuania, Netherlands, Portugal, Slovenia, Sweden and France.
Although Article 31 does not apply to irregular migrants according to the appendix, case law deviates from this, especially when it comes to the rights of irregular minors. For instance, in 2008 the European Committee of Social Rights affirmed the following: “States’ interest in foiling attempts to circumvent immigration rules must not deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled.”
Access to private accommodation
Council Directive 2002/90/EC of 28 November 2002 on the facilitation of unauthorised entry, transit and residence imposes a duty on EU member states to prosecute those who, for financial gain, assist an irregular migrant to reside in breach of the laws of the State. This directive did not, however, translate into the national framework of 13 European countries, among which the Netherlands. Here, people who shelter irregular migrants still have an obligation to inform the authorities. Effectively, migrants who cannot rely on family or friends for their accommodation, and turn to the private housing market instead, encounter several obstacles. Tenants may be asked to provide documents to sign a lease contract, such as a proof of income, which is impossible for those migrants who do not have the authorisation to work. Overall, a FRA (European Union Agency for fundamental rights) civil society survey (2) indicates that “migrants in an irregular situation are often discriminated against, exploited and forced to pay high rent for accommodation that is sometimes of inadequate quality. High rental costs are also one of the reasons why migrants incur a high level of debt.”
Access to shelter for homeless people
Shelters are the last available option for irregular migrants who have no social network to rely on and are not able to rent privately. This option is mostly short-term, and therefore only used in times of great need, when migrants risk homelessness. The regulations of shelters depend in most cases on the organisations or NGOs that run them. Although the law does not prevent irregular migrants from enjoying free accommodation in shelters, several complications ensue in practice.
First of all, state-owned shelters may decide to refuse access to those migrants who cannot provide basic documentation such as a residence permit and a proof of income. Private facilities are also reluctant to accept irregular migrants as they fear this might put at risk their local or national funding, or lead to more frequent police raids. In Austria, Germany, and the Netherlands (3) all public shelters must report their clients’ data to social services, thus increasing the risk of deportation.
Law framework for healthcare rights of irregular migrants
- ICESCR, Article 12.
(“[…] the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. […] The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”)
As previously stated, the ICESCR was ratified by all 27 EU member states and applies to irregular migrants also. The universality of this article was further confirmed in several general comments by the Committee on Economic, Social and Cultural Rights (CESCR, 2000, General Comment No. 14, CESCR, 2008, General Comment No. 19.)
- ICERD, Article 5.
(the right of everyone to enjoy “economic, social and cultural rights, in particular: […] the right to public health, medical care, social security and social services.”)
- European Parliament Resolution 2010/2089 – On reducing health inequalities in the EU, February 2011.
(“The European Parliament, […] whereas universality, access to high-quality care, equity and solidarity are common values and principles underpinning the health systems in the EU Member States, […] whereas in many EU countries equitable access to healthcare is not guaranteed, either in practice or in law, for undocumented migrants, […] Calls on the Member States to ensure that the most vulnerable groups, including undocumented migrants, are entitled to and are provided with equitable access to healthcare; calls on the Member States to assess the feasibility of supporting healthcare for irregular migrants by providing a definition based on common principles for basic elements of healthcare as defined in their national legislation.”)
This 2011 resolution, in which the European Parliament addressed for the first time the fundamental right to health of irregular migrants, determines that it is up to the member states to define a minimum level of entitlement and to grant access to basic forms of healthcare. It goes without saying that there is no consensus on the topic among member states.
It is possible to divide EU member states into three groups, based on the degree of access they provide to irregular migrants: 1) less than minimum rights, 2) minimum rights, and 3) more than minimum rights. That would correspond to less than (not even) emergency care, right to emergency care and right to more than emergency care (such as preventive care, primary care, secondary care).(4)
1) Less than minimum rights (not even emergency care)
Emergency care consists of life-saving measures and any medical treatment necessary to prevent serious damage to a person’s health. Out of 27 EU members, 10 do not grant access to this type of urgent care: Finland, Ireland, Malta, Sweden, Austria, Bulgaria, Czech Rep., Latvia, Luxembourg, Romania. These member states do not have a special legislation implying that entitlements have to be deduced from the general legal framework, from policy documents (Malta) or from informal agreements (Luxembourg). The patient is either charged a cost of care which makes care unaffordable, or there is a certain element of arbitrariness introduced by the staffs’ discretion (i.e., to provide or not to provide care, to charge or not to charge), or the country offers health care only within detention centres.
2) Minimum rights (emergency care)
Twelve member states belong to this second cluster: Cyprus, Denmark, UK(6), Belgium, Estonia, Germany, Greece, Hungary, Lithuania, Poland, Slovakia, Slovenia. Here irregular migrants are entitled to receive “immediate care” or “urgent care” which is not economically or in other ways conditioned. In some cases, the care is related to life-threatening events. In these countries the legislation does not allow health care staff to exercise their discretion as to who will or will not receive care. Health care of a more extensive kind might be accessed under certain unpredictable circumstances (i.e., at the discretion of the professional involved) or in return for payment of the full cost. Children and pregnant women are sometimes taken under special considerations.
3) More than minimum rights (preventive care, primary care, secondary care)
As little as 5 member states belong to this third group: Italy, Portugal, Spain, France, Netherlands.
Here entitlement to health care includes services beyond emergency care, involving primary and secondary care. There are regulations in place and even different pathways to obtain entitlement to health care. The relevant provisions are laid down in legislation explicitly referring to irregular migrants. In certain cases, though, administrative procedures may, in practice, impair access to care to a certain extent.
In conclusion, four main obstacles can be identified that migrants with irregular status have to face when in need of medical attention:
1) expenses; in several countries, rules are unclear when it comes to which services are covered, therefore service providers are reluctant to offer them and migrants are reluctant to request them. This is the case for hospitalisation and laboratory fees, for instance.
2) lack of information; both health staff and migrants are often lacking information on healthcare entitlements due to complex legislation.
3) discretion of healthcare staff; in several cases it is up to the healthcare staff to determine whether to provide a service, request payment for it, and to decide what classifies as essential care.
4) fear of repercussions; in a number of countries, service providers have a duty to report irregular migrants to immigration authorities, or are at least encouraged to do so.
Cities and Municipalities
Recently there has been an increase in cities, municipalities and more generally local authorities that address national and international challenges and issues and pragmatically tackle them through inclusive solutions. One of these challenges is that of migrant and refugee hospitality and integration. City networks, such as Eurocities(5), are calling for more and more financial and legal empowerment of local authorities in this field. These kinds of transnational city networks are exchanging best practices in the field of refugee reception and also requesting additional funding, setting standards and seeking to influence national and international policy-making. In the City Initiative on Migrants with an Irregular Status, for example, municipalities work together to better services to irregular migrants, such as legal advice, education, healthcare, shelter and support for victims of crime.(7) There are several factor that can influence the proactivity of cities in the field of refugee and migrant hospitality, like demographic composition, the presence of organizations and NGOs, the political colour of the city, its financial position and the relevance of tradition and history of welcoming policies. There are several concrete steps for human rights implementation that cities can take, and they are the subject of the second half of this article, with regards to housing and healthcare rights specifically.
What cities and municipalities can and should do
There are several general principles that municipalities can and should follow in order to provide irregular migrants with access to essential services. Some cities have formal policies for this group of people and allocate a specific budget, whereas others make more informal adaptations. Some municipalities facilitate access to mainstream services by extending, for example, social work dealing with homelessness to homeless irregular migrants, whereas others make separate arrangements specifically for this group. In addition to this, services may be directly provided by local public staff, or outsourced to NGOs. This could prove very beneficial because NGOs have a solid expertise that can meet the particular needs of irregular migrants, they can be perceived as more trustworthy than official council service by the migrants themselves, they may be less influenced by political agendas and finally, their services may prove less expensive. The first and most pressing topic is that of establishing a so-called “firewall”. A firewall is “a separation between public immigration enforcement activities targeted at irregular migrants and the provision of services to them”(8).All efforts to improve the access of migrants with irregular status to indispensable services is in vain if those in need of help do not feel safe enough to come forward. Therefore, cities and municipalities must be able to provide assurances that personal information will in no way, shape or form be disclosed to authorities who are responsible for enforcing immigration laws. Fear of detection is always a significant deterrent to using a service.
There exist several measures to ensure the safeguarding of personal data from immigration authorities, such as:
- essential services could be exempted from the general requirement for public servants to report irregular migrants. It is the case in Germany, where doctors and teachers are exempted from reporting.
- the World Medical Association recommends that members of professional associations declare that transfer of data on service users would breach the ethics of their profession.
- not asking service users for information on immigration status when accessing a service
- where required to gather information on immigration status, municipalities can adopt a policy not to disclose such information. One solution may be, as previously mentioned, outsourcing the service to an NGO, which in many cases may not have a duty to disclose information on service users.
- local civic cards could be a useful solution for those municipalities where immigration status is not required to enjoy a service, but a proof of identity is.
When it comes to the right to housing, irregular migrants are, as mentioned above, one of the most vulnerable categories, as they are prohibited from working, cannot receive social benefits in most cases, and frequently engage in low-paid work that may not suffice to pay rent in the private market. States have a negative obligation to respect the right to an adequate standard of living, that is by not interfering in the enjoyment of rights set forth in the ICESCR and other international treaties. Negative obligations should be, for example, not placing unjustified administrative or documentation burdens on the enjoyment of the right to housing and not penalising service providers. The main role of municipalities in this respect is to ensure migrants do not become homeless and possibly to offer legal counselling that will help them find a permanent solution to their irregular status. Stable accommodation is, indeed, the first step toward ending a situation of irregularity, since it is easier for legal staff to follow the case of a shelter resident.
It is evident that cities and municipalities have several reasons to get involved.
Firstly, municipalities often have the legal duty to take care of destitute and homeless people to protect the fundamental rights of all, especially in the cold winters of Northern Europe, when being deprived of a shelter can prove fatal. What is more, providing accommodation to irregular migrants is a useful measure to fight not only irregular settlements and squatting, but also secondary consequences of homelessness, such as street prostitution, substance abuse, crime and physical dangers associated with sleeping in unsafe conditions. Lastly, homelessness is an issue of public order, and reducing it will prove reassuring to the local population and will positively impact the image of the city, thus influencing tourism.
The following list provides measures for municipalities to implement in this respect:
- facilitating access to municipal shelters; one solution is to stop requiring residence permits at the entry and refraining from carrying out immigration checks within shelters altogether.
- funding or reimbursing NGOs that provide shelters to people in need regardless of their immigration status. The mediation of an NGO is particularly important for those countries where national legislation on irregular migrants is very restrictive.
- supporting irregular migrants’ access to the private housing market; an NGO can intervene as a mediator between landlord and tenants. Alternatively, municipalities can directly support destitute migrants for accommodation purposes, by providing monthly allowances for instance.
- accommodation for irregular migrants who cooperate in their return; this is the case especially for those country with restrictive national policies, and it serves as reconciliation between housing rights and immigration rules on migrants’ removal. A more inclusive option would be to give legal counselling to migrants in the shelter, which could convince them to voluntarily participate in return programs.
When it comes to healthcare rights, as previously discussed, irregular migrants encounter several obstacles in accessing medical treatments, and their entitlement to healthcare is frequently limited. Not being able to register with a general practitioner (GP) or obtaining continuous care proves detrimental to the migrants’ health while also being a risk for the whole community. If migrants are forced to only seek medical help when their condition is critical, this is not only dangerous for their health and safety, but also implies higher costs for hospitals. Moreover, public hospitals are destined to have an excess demand in emergency services, in turn making them less available for the whole population. Therefore, ensuring that no segments of society are excluded from access to healthcare is an issue of public health and has potential repercussions on the whole community. It has been shown that granting regular access to medical treatments for irregular migrants, in the form of preventative care, is cost efficient for public finances.(9) Viable options for local authorities in this regard are:
- setting up firewalls by allowing all employees working in medical facilities to preserve confidentiality.
- financing safety nets for migrants, making budget reservations and providing funding to cover the expenses of both patients and hospitals for treatment to uninsured individuals, regardless of their immigration status.
- streamlining administrative procedures in countries where the bureaucratic path to access healthcare is particularly complicated to grant access to a larger amount of people.
What cities and municipalities have done: The case of Utrecht
This final part of the article is going to discuss the case of the city of Utrecht as a good practice example when it comes to the access of migrants with irregular status to the rights of housing and healthcare. It is worth noting that Utrecht does not reflect the stance of the whole of the Netherlands in regards to social rights afforded to irregular migrants. The emphasis that Utrecht places on human rights for those who live within its confines is due to its commitment in identifying as a Human Rights City, a local authority that bases its policies on international human rights law.(10)
Housing and accommodation initiatives
In Utrecht the impact of street homelessness and the vulnerability of young people on the street needed to be addressed. In November 2018, the Association of Dutch Municipalities (VNG) signed an agreement with the Dutch Ministry of Justice and Security on developing a national network of shelter and advice provision (National Immigration Facilities or LVVs). The plan is to establish a cooperation between municipalities and the national government to find a long-term solutionfor irregular migrants. In these facilities, migrants are provided with shelter and care, and most importantly guidance to either secure voluntary repatriation, transit migration or regularisation of status. Utrecht funds NGOs to manage threesupport centres; one centre is dedicated to women and children, one to homeless adults with irregular migration status and a third is an ‘emergency shelter’ for unsuccessful asylum seekers. The NGOs, thanks to the municipality’s funding, host those who are deemed to need shelter in small groups in rented apartments. In 2018, 30-40 such houses offered 225 places.(11) The integrated approach of these shelters, that also offer additional services such as medical care, counselling and immigration advice, led to great results. In the period 2002-2018, there was a 92% solution rate (from a total of about 1000 people): about 59% of the local shelters’ guests with irregular status managed to obtain a regular residence permit, 19% agreed to return to their country of origin, 13% were readmitted into the asylum accommodation system, and only 8% left the shelters with an irregular status.(12)
Outreach activities were a fundamental aspect of the success story of Utrecht, since it is essential that migrant communities are first and foremost aware of the services offered by local authorities and the social rights they are entitled to. In 2012 the municipality carried out an information campaign that targeted the local population of irregular migrants. They distributed leaflets titled “Without papers, not without rights”, which provided relevant information on irregular migrants’ rights.
Another essential aspect was ensuring that police patrols and immigration enforcement do not target facilities where irregular migrants are hosted. The local police of Utrecht have agreed not to enforce arrests in the municipal shelters for irregular migrants. Moreover, guests of the shelters are provided with a document to prove their stay, which they can show to police officers should they be arrested outside the shelter. The police have agreed not to detain people with such proof, so as not to obstruct the work being done to regularise the migrants or assist in their voluntary return.
Healthcare initiatives
Several municipalities in the Netherlands, including Utrecht, support local NGOs that provide healthcare assistance to uninsured migrants and bear the cost of the services that are not covered by the National Basic Health Insurance, for instance dental care and physiotherapy, or fees for pharmaceuticals.(13) Local NGOs also facilitate access to dental services by connecting patients with dentists willing to treat them for a reduced fee. On top of providing financial assistance, these NGOs certify migrants’ eligibility for reimbursement and offer them a proof of confirmation to present to hospitals and doctors(14), since the complex bureaucratic system can sometimes make it difficult for the administrative staff to promptly recognize those who have the right to the service.
Conclusion
In conclusion, local authorities, municipalities and cities have been rightfully described as pragmatic problem-solvers, as they hold an enormous power when it comes to the actual implementation of human and social rights. With the process of urbanization steadily increasing, and the formation of deeply rooted cosmopolitan values, among which hospitality and empathy, local actors and communities are to be trusted with more and more decision-making power, if we want to see tangible change in society.
Sources
(1) 2019, N. Delvino, S. Spencer, Migrants with Irregular Status in Europe: Guidance for Municipalities.
(2) 2011, FRA – European Union Agency for Fundamental Rights, Fundamental rights of migrants in an irregular situation in the European Union – Comparative report
(3) 2011, FRA – European Union Agency for Fundamental Rights, Fundamental rights of migrants in an irregular situation in the European Union – Comparative report, Luxembourg: Publications Office of the European Union.
(4) 2012, G. Biffl, F. Altenburg, Migration and Health in Nowhereland – Access of Undocumented Migrants to Work and Health Care in Europe, Omninum KG, p. 113.
(6) This information dates back to 2012, before the Brexit process took place.
(7) 2018, S. Spencer, Inclusion of Migrants with Irregular Status – Cities of Migration
(8) 2019, N. Delvino, S. Spencer, Migrants with Irregular Status in Europe: Guidance for Municipalities.
(9) 2015, FRA – European Union Agency for Fundamental Rights, Cost of exclusion from healthcare – The case of migrants in an irregular situation. Luxembourg: Publications Office of the European Union
(10) 2014, Oomen B., Baumgärtel M., Human Rights Cities
(11) 2019, N. Delvino, S. Spencer, Migrants with Irregular Status in Europe: Guidance for Municipalities.
(12) Ibid.
(13) 2017, PICUM – Platform for International Cooperation on Undocumented Migrants, Cities of Rights – Ensuring health care for undocumented residents.
(14) Ibid.