The Impact of the Economic Crisis on the Right to Health of Irregular Migrants, as Reflected in the Jurisprudence of the un Committee on Economic, Social and Cultural Rights

In: European Journal of Migration and Law
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  • 1 Irish Centre for Human Rights, School of Law, National University of Ireland, Galway, IE

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In response to the global financial and economic crisis, which began almost a decade ago, many European countries have adopted austerity measures aimed at curtailing public expenditure, which have negatively impacted the domestic realisation of the ‘European Social Model’. In particular, domestic policies on budget containment, and stricter controls on immigration have often curtailed the social right to healthcare for targeted categories of undesired migrants such as undocumented migrants. The aim of this paper is to assess whether the ‘narrative of the crisis’ has affected the interpretation of the right to health of undocumented migrants within the jurisprudence of the un Committee on Economic, Social and Cultural Rights. This research offers the opportunity to reflect upon the ‘consistent’ understanding and use of the concepts of ‘vulnerability’, ‘non-discrimination’, ‘core obligations’, and ‘austerity measures’, in relevant reporting material, when undocumented migrants’ access to, and level of, health care is concerned.

  • 5

    See Odello, M. & F. Seatzu, The UN Committee on Economic, Social and Cultural Rights—The Law, Process and Practice (Abingdon: Routledge, 2013), pp. 178–185, and Mechlem, K., ‘Treaty Bodies and the Interpretation of Human Rights’, 42(c) Vanderbilt Journal of Transnational Law (2009) 905–946.

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  • 12

    International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists, 2008), p. 73, 82.

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  • 17

    Bosniak, 2004 (n. 15), p. 326.

  • 19

    See Bosniak, 2004 (n. 15), p. 325 and Di Pascale, A., ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’, in R. Rubio-Marín (Ed.), Human Rights and Immigration (Oxford: oup, 2014), p. 279.

  • 29

    Turner, 2006 (n. 28), p. 1.

  • 34

    Ibid., 727.

  • 40

    Turner, 2006 (n. 28), p. 2.

  • 45

    Albertson Fineman, 2008 (n. 28), p. 10 and Kirby, P., Vulnerability and Violence (London: Pluto Press, 2006), pp. 54–55.

  • 74

    Spencer & Hughes, 2015 (n. 61), p. 12, 16.

  • 79

    As of January 2017, only 50 states have ratified this treaty and only Albania, Azerbaijan and Bosnia and Herzegovina in geographical Europe. The main obstacles to the ratification process are the claim that this treaty would interfere too deeply with the sovereign powers in the area of immigration and the political unwillingness to make internationally visible and clear basic rights for undocumented migrants, MacDonald, E. & R. Cholewinski, The Migrant Workers Convention in Europe: Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: EU/EEA Perspectives (Paris: unesco Publishing, 2007), p. 51.

  • 84

    Ibid., 717.

  • 87

    Dowell-Jones, 2014 (n. 82), pp. 66–67, 80. Dowell-Jones recommended a shift to financially sustainable socio-economic rights and services which would be less directly dependent on resources coming from an increasing state indebtedness. She further recommended the set-up of clearer standards, priorities, and quantitative tools so as to make esc rights a useful normative framework in economic decisions.

  • 94

    Chimienti, M. & J. Solomos, ‘How Do International Human Rights Influence National Healthcare Provisions for Irregular Migrants? A Case Study in France and the United Kingdom’, Journal of Human Rights (2015) 1–5.

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  • 117

    Dowell-Jones, 2014 (n. 82), p. 64.

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