Court/Judicial body: European Committee of Social Rights
Date: September 7, 2004 CRC
Provisions:Convention on the Rights of the Child (general reference)
Other international provisions:European Social Charter ( Article 13 – right to social and medical assistance; Article 17 – children’s rights)
Background: In 2002, France passed a law to end the exemption of illegal immigrants with very low incomes from paying charges for medical treatment, imposing instead a flat-rate charge for medical treatment outside of the hospital and a daily charge for in-patient treatment. International NGO FIDH sued to challenge this new law as a violation of Articles 13 (social and medical assistance generally) and 17 (rights of children) of the European Social Charter (revised). FIDH recognized that illegal immigrants might not be end to identical treatment as nationals, but argued that denying all medical assistance to impoverished illegal immigrants was impermissible.
Issue and resolution: Immigration; health care. The Committee found that France was end to charge adult illegal immigrants fees for healthcare, but must continue to provide free medical care to illegal immigrants under the age of majority.
Court reasoning: The Committee first noted that France’s new law did not deprive illegal immigrants of the opportunity to seek any free medical assistance as the government would still cover some health care costs for any person in the country, including in the case of emergencies or other life-threatening conditions. Given that some form of medical treatment was still available to illegal immigrants, then, the Committee concluded that their rights under European Social Charter Article 13 on social and medical assistance had not been violated. With regard to Article 17 of the Charter, the Committee noted the Article’s strong correlation with the Convention on the Rights of the Child and emphasized that children are end to special protection, including medical care and assistance. Since France’s new law would provide medical treatment to children only if they had been resident in France for a fixed period of time or when the situation involved an immediate threat to life, the Committee found that it violated the rights of children unlawfully in the country.
Dissenting opinion: Certain members of the Committee did not find that children’s right to medical assistance had been violated as the Charter should apply only to people who are lawfully resident in France. Certain other members believed that not only had children’s rights been violated, so too had the rights of adult illegal immigrants with very low incomes.
Excerpt citing CRC and other relevant human rights 35. With respect to Article 17 the Committee recalls that several provisions of the Revised Charter guarantee the Rights of Children and young persons. The text of Part I provides that: “The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised… 7. Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed… 17. Children and young persons have the right to appropriate social, legal and economic protection…” 36. Article 17 of the Revised Charter is further directly inspired by the United Nations Convention on the Rights of the Child. It protects in a general manner the right of children and young persons, including unaccompanied minors, to care and assistance. Yet, the Committee notes that a) medical assistance to the above target group in France is limited to situations that involve an immediate threat to life; b) children of illegal immigrants are only admitted to the medical assistance scheme after a certain time. 37. For these reasons, the Committee considers that the situation is not in conformity with Article 17.
Follow up: In response to the decision, France issued a circular on March 16, 2005 describing procedures for providing medical assistance to persons not lawfully present in France. Among other things, the circular reflected a changed policy with respect to children, who would now be automatically end to receive free medical assistance. An English translation of the Government Circular is available on the ESCR-Net website: http://www.escr-net.org/usr_doc/Government_Circular_translation.doc.
CRIN comments: CRIN believes that this decision is consistent with the CRC. Under CRC Article 24, children have the right to “the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health,” just as they have the right to medical assistance under Article 17 of the European Social Charter. This right applies to all children, regardless of their immigration status, and States’ national laws and policies should strive to ensure that each child in their territory has access to appropriate health care.
Citation: European Committee of Social Rights, Complaint No. 14/2003
Link to full judgement: http://www.escr-net.org/usr_doc/Committee_Social_Rights_Decision_Merits.pdf