Immigration Status and Basic Social Human Rights: A Comparative Study of Irregular Migrants' Right to Health Care in France, the UK and Canada
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| DOI | 10.1177/016934411002800102 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 28/1, 6–40, 2010.
6 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
PART A: ARTICLES
IMMIgRAtIon stAtUs AnD BAsIC soCIAl
HUMAn RIgHts: A CoMPARAtIVe stUDY oF
IRRegUlAR MIgRAnts’ RIgHt to HeAltH
CARe In FRAnCe, tHe Uk AnD CAnADA
S D L*
Abstract
e article examine s the constraints that irregular migrants’ immigration stat us exerts
on th e realisation of their basic social human rights. To thi s end, the art icle focuses
on the r ight to health care and undertake s a comparative study of irregular mig rants’
access to health care in France, the United Kingdom and Canada. e st udy shows that
States p erceive the confe rment of social rights on irregul ar migrants a s an e rosion of
the government’s immigration power notwiths tanding their characterisation as human
rights. e resource-intensive nat ure of the right to health care further heightens States’
reluctance to extend this r ight to irregular migrants. Yet compliance with international
human rights law and respect for human dignity require that States reinstate personhood
as a source of rights and therefo re reassess the relevance of their immigration power.
1. INTRODUCTION
‘e prote ction of strangers should constitute an important te st for hu man rights since
they do not claim protection as members of a family, clan, or nation, but as members of
hum an ity.’ 1
International human rights law undertook a sem inal conceptual reorientation i n the
post-World War II period by disentangling rights from citizenship and attaching
rights to the person.2 is reorientation, however, has not made one’s legal status in
* Sylvie Da Lomba is a lecturer at t he Law School of the University of Strat hclyde, Glasgow, Scotland ,
the United Kingdom . All internet sites were l ast accessed on 15 Janua ry 2010.
1 Guiraudon, V., ‘Europea n courts and forei gners’ right s: a compa rative stu dy of norm s dius ion’,
e Internation al Migration Review, Vol. 34, No. 4, 20 00, pp. 1088–1125, at p. 1092.
2 Fletcher, G.P., ‘Guantana mo disentang led? e US Supreme Court s teps in: cit izenship a nd
personhood in the jurisprudence of war: Hamdi, Padilla a nd the detainees in Guanta namo Bay’,
Immigrat ion Status and Basic Soc ial Human Rights
Netherlands Q uarterly of Human R ights, Vol. 28/1 (2010) 7
the n ation-State redundant and migrants’ immigration status rema ins the primary
determinant of their rights i n the host State. Recognising personhood a s a source of
rights, however, is critical to irregular migrants as their immigrat ion status renders
them ineligible for the rig hts host States confer on regular migrants. 3
is art icle examines the respect ive signicance of personhood and immigration
status as sources of rights with a v iew to determining whether international human
rights law may contribute to osett ing legal status divides in t he nation-State. To this
end, the article focuses on the question of basic social rights for irregular migrants who
are settled in host State s. Irregular migrants a re foreign nationals who do not comply
with imm igration law requirements. Irregu lar migration covers a ra nge of situations
which include: cla ndestine arrival in the host State, st ay beyond the permitted
period of residence, or working without a permit or in a manner inconsistent with
one’s immigration status.4 e ter m irregular migrant also covers people who enter
on false papers, rejected asylu m seekers who have exhausted their appea l rights and
can no longer remain in the host State, a nd regularised migrants who fall back into
an irreg ular situation.5 e t reatment of irregular migrants in the social sphere puts
international human rights law and personhood as a source of rights to the test. It also
raises the question of the relevance of immigration stat us to the realisation of ba sic
social human rights. I n order to exa mine these is sues, this a rticle looks at irregular
migrants’ access to hea lth care in France, the United Kingdom (UK) a nd Canada.
Health care ha s been characterised as a basic necessity6 and as such is recognised
in international hu man rights law as a social right in herent in human dig nity.7 A
comparative study of irreg ular migrants’ access to health c are in selected host
States provides a cross-nationa l basis for measur ing the weight appor tioned to
immigration status and personhood as sources of rights. In particula r, it prov ides a
Journal of Intern ational Criminal Just ice, Vol. 2, No. 4, 2004, pp. 953–966 , at p. 954.
3 For an analysis of the conc ept of personhood in re lation to human right s, see, for instanc e, Grin,
J., On Human Rights, O xford University Press, O xford, 2008, pp. 33–37, 57–58 and 66–80.
4 Guild, E., ‘Who is an irregular migra nt?’, in: Bogusz, B., Cholewinsk i, R., Cygan, A. and Szyszczak, E.
(eds), Irregular Migration an d Human Rights: eoretic al, European and Intern ational Perspectives ,
Martinus N ijho Publishers, Leiden /Boston, 2004, pp. 3–28, at p. 3.
5 Cholewinski, R., ‘Identi fying and clar ifying concepts on “ irregular mi gration”’, 10th Re gional
Conference on Mig ration Current Perspec tives and Strateg ies in Addressing ‘ Irregular’ M igration,
Singapore, 6–10 November 2 006, available at: www.mfasia .org/mfaResource s/RCholewinski-
Concepts.pdf .
6 Arras, J.D., ‘Retreat f rom the right to hea lth care: the President’s Commission a nd access to healt h
car e’, Cardozo Law Revi ew, Vol. 6, 1984–1985, pp. 321–345, at p. 323.
7 e right to health care is a core component of the right to health together with t he underly ing
preconditions for health such as an adequate supply of food and nutrition and access to potable water
and adequate sanitation; Com mittee on Economic , Social and Cultural R ights, General Comment
No. 14 (2000), e Right to the highest attainable stand ard of health , U N Do c. E/C .12/2000/4,
11 August 2000, paras 4 and 11. For a comprehensive analysis of the content of the right to health, see
Toebes, B.C.A., e Right to Health as a Human Right in Internati onal Law, Intersentia, Antwerpe n,
1999, pp. 243–289.
Sylvie Da Lomba
8 Intersentia
basis for examining the extent to which the realis ation of irreg ular migr ants’ basic
social ri ghts as recognised in international human rights law may be cons trained by
their i mmigration status in the host State. is comparative study also al lows us to
ascertai n whether State-specic factors signica ntly mediate host States’ responses
to t he question of basic social rights for irregular migrants or whether a com mon
position may be identied.
e three jurisdictions under consideration, namely France, the UK and
Canada, pos sess common characterist ics that make a compar ison of their respective
approaches to irregular migrants’ access to health care and their overall stance on
the quest ion of basic soc ial rights for this populat ion feasible. First, these are States
which have comparable socio-economic str uctures a nd are amongst the wealthiest
in the world.8 S econdly, they are also amongst the States w ith the largest numbers of
migra nts.9 irdly, France, the UK and Canada have all professed their commitment to
international human rights law and its founding va lues and principles. Consequently,
all three jurisd ictions have be en instrumenta l in relocat ing basic rights outside t he
nation-State. Finally, France, the UK and Canada have all publicly f unded health care
systems, a lthough there are signicant di erences in the way their national systems
operate. It is acknowledged that other States such as Spain or Germany share the same
characterist ics, but space constraints did not allow for greater inclusiveness. e choice
of jurisdictions, however, provides a representative sample of host Western States and
has the advantage of introducing a transatlantic element to the comparison that makes
the study relevant beyond Europe. e focus on France, the UK and Canada is further
justied by t he fact that, in spite of their strong commonal ities, their legal respons es
to irregula r migrants’ health care needs di er signicantly.
Before enga ging in a comparative study of i rregular migrants’ access to health
care and e xamining the ex tent to which irregul ar migrants’ imm igration status may
constrain the realisat ion of their basic social rights, and in particular the realisation of
8 All three States are memb ers of the G8.
9 Estimated numbers of migra nts for 2010 in France, the UK and Canada are res pectively 6.7, 6.5 and
7.2 millions (Internat ional Organization for Mig ration, www.iom.int /jahia/Jahia /about-migration/
facts-and-g ures/regional-and- country-gures/cache /oonce). Data on irregul ar migrant numbers,
however, is both scant and unreliable. In 2006, it was estimate d that there were between 200,000 and
500,000 undocumented workers in Canada (39th Parliame nt, 1st Session, Standing Committee on
Citizenship and Imm igration, Evidence, 19 October 2006, 0950). e central estimate of the number
of irregu lar residents in the UK at the end of 2007 was 618,000, with a range of 417,000 to 863,000 ;
Gordon, I., Scanlon, K., Travers, T. and W hitehead, C ., Economic Impact on the Lon don and UK
Economy of an Earned Regular isation of Irregular Migrants to the UK, LSE, London, Apri l 2009, p. 6,
available at : www.london.gov.uk/mayor/economic _unit/docs/irreg ular-migrant s-report.pdf. e
central est imate includes chi ldren born in the UK to irregula r migrant workers. ey add between
12 and 20 percent to the estimate (idem). In France, estimates vary betwee n 200,000 and 400,00 0 for
2007; Van Eeckout , L., ‘Régu larisation: le travail, un espoir pour les sans-papiers’ [Reg ularisation:
work, some hop e for undocument ed mig rants], L e Monde , 8 Januar y 200 8, w ww.lemonde.fr/a-
la-une/article /2008/01/08/regula risation-le-tr avail-un-es poir-pour-les-sa ns-papiers_99 6908_320 8.
html.
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