The Right to Health of Migrants...Outline •International legal framework surrounding ... 1951...

The Right to Health of Migrants

Fanny Dufvenmark

Migration Law Expert

IOM, Geneva

Outline

• International legal framework surrounding migration;

• Instruments dealing with the health of migrants;

•The right to health and how it applies to migrants;

•Common challenges faced my migrants in accessing their right to health.

International Migration Law and Health

• Human Rights:

UDHR- Art. 25, ICERD – art. 5 (e) (iv), CEDAW – art 12, CRC – art. 24, ICRMW – arts. 28,43,45, CRPD – art. 25.

• Refugee Law:

1951 Convention - Art. 23.

• Labour Law:

No. 97 - Art. 5, No. 143 – Art. 10, No. 189 – Art. 13.

• Transnational Criminal Law:

Smuggling Protocol – Art. 16, Trafficking Protocol – Art. 6(3).

• Humanitarian Law:

Geneva Convention IV – Art. 38(2), Additional Protocol I to the Geneva Conventions – Art. 10.

The Right to Health

International Covenant on Economic, Social, and Cultural Rights, Article 12 (1)

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The Right to Health

The Right to Health of Migrants

ICRMW, Art. 28: the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.

CESCR, GC No. 14: “In particular, 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 prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”

Emergency vs. Primary Health care

“Mere commitment to emergency care is unjustified not only from a human rights perspective, but also from a public

health standpoint, as a failure to receive any type of preventive and primary care can create health risks for both

migrants and their host community.”Report Former Special Rapporteur on human rights of migrants, Jorge Bustamante,

A/HRC/14/30, para. 28.

Further, the denial of access to health care until an emergency situation arises is incongruent with the right to

health and counter-intuitive, as it imposes longer-term health and financial costs for individual migrant workers and

societyReport Former Special Rapporteur on the right of everyone to the enjoyment of

the highest attainable standard of physical and mental health, Anand Grover, A/HRC/23/41, para. 40.

Migrant children

• CRC/CMW

Para 55. “Every migrant child should have access to health care equal to that of nationals, regardless of their migration status.”

Challenges for Migrants

•Discriminatory laws and policies

• Inadequate implementation;

•Difficult to access information;

•Lack of firewalls;

•High costs;

•No access to insurance;

•Language barriers.

Risk points for right to health

• Xenophobia and discrimination

• Marginalization

• Documentation/Birth registration

• Detention

• Exploitation

• Return

Conclusion

•The health of migrants is dealt with by variousinternational treaties;

•The right to health applies to everyone, irrespectiveof migration status;

•The right to health is not just the right to health care;

•A holistic approach to the right to health have to address all the risk points and challenges that migrants encounter throughout their journey.

Thank you for your attention!fdufvenmark@iom.int