By  Veelke Derckx , University of Utrecht,  v.l.derckx uu.nl

Irregular migrants face obstacles when trying to obtain health care. In order to enjoy the right to health, it is necessary to create a central reporting point to monitor actual obstacles in the access of health care of irregular migrants.

On 13 March 2017, the Committee on Economic, Social and Cultural Rights (CESCR) issued a Statement on “Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights”. In this Statement, the Committee reaffirms the human rights of all refugees and migrants, regardless of status, and notes that all people under a state’s jurisdiction enjoy rights under the ICESCR, “even when their situation in the country is irregular.” Irregular migrants face specific obstacles with regard to (amongst other social rights) the right to the highest attainable standard of health, according to the Committee. What obstacles do irregular migrants face in the Netherlands when seeking health care, and what can the Dutch government learn from the Statement?

It has been estimated that there are 25.000-50.000 irregular migrants in the Netherlands. Since the so-called Linkage Act entered into force in 1998, these migrants residing in the Netherlands are excluded from public collective benefits and services; e.g. financial support, housing, and health insurance. An exception is made for (inter alia) ‘medically necessary care’. Irregular migrants do have access to healthcare services, but they have to pay the bill themselves. The Dutch government has created a special finance system for the unpaid accounts for the treatment of irregular migrants. This fund pays for care which falls under the basic health insurance of the Health Insurance Act (with the exception of in vitro fertilization and gender operations). The health care provider has to indicate that the given care is ‘medically necessary’.

Despite this financing scheme, which is quite generous compared to other countries within the European Union, the access to health care of irregular migrants is under pressure in the Netherlands. Recently, I analyzed the specific obstacles irregular migrants are confronted with getting access to medical care in the Netherlands.[1] A short summary of my findings:

• The costs for general dental and other oral care for individuals above 18 are not covered by basic health insurance and consequently not covered by the reimbursement system. Dental care is expensive and irregular patients, therefore, do not visit the dentist.
• The financing structure does not provide compensation for the hiring of an interpreter. The Dutch government decided to discontinue compensation for interpretation and translation services in health care for individuals with low Dutch proficiency. According to the Public International Law & Policy Group, the decision of the government conflicts with the right to health.
• A gap exists between the right of undocumented women to sexual and reproductive health and the reality on the ground.[2] The Committee on the Elimination of Discrimination against Women urged the Netherlands to take immediate measures to provide undocumented women with information on their rights, as well as practical information on how they can access health-care services, but the Dutch government has not yet taken action in this area.
• Many parents of irregular children do not know that their child has the right to medical care. Visits to the doctor are therefore postponed for as long as possible. The Committee on the Rights of the Child has expressed its concerns about the limited access to health care for undocumented children and recommends that the government of the Netherlands give children access to information about their rights, including the right to health.
• Not all health care providers are aware of the reimbursement procedure as mentioned earlier. Some doctors and hospitals refuse patients who reside irregularly in the Netherlands. It is unknown how many irregular patients are refused in practice because a central reporting point to monitor actual obstacles in the access of health care for irregular migrants does not exist.
• Health care providers interpret the term ‘medically necessary care’ differently. In some cases, the interpretation is (wrongly) narrowed down to only ‘acute’ medical care.

The analysis in my article shows a lack of information on the part of the government about the right to health of irregular migrants in the Netherlands, especially with regard to women and children. The Statement of the CESCR underlines that the very presence of irregular migrants under its jurisdiction imposes on States certain obligations, including primary acknowledgement of their presence and enabling them to exercise their (fundamental) right with national authorities in an effective way. The Committee urges States parties to collect and provide to the Committee more information on the extent to which refugees, asylum-seekers and undocumented migrants enjoy their rights under the Covenant. The former Dutch Minister of Health, Welfare and Sport was of the opinion that no immediate cause exists to create a central reporting point to monitor actual obstacles in the access of health care for irregular migrants. However, the Statement of the CESCR points out that such a monitor is necessary to improve the access to health care of irregular migrants. The government has an active role to play regarding informing irregular migrants about their social rights, including the right to health.

[1] V.L. Derckx, ‘Medische zorg aan irreguliere migranten: een status quo’, TvGR 2017, p. 121-134.

[2] M. Schoevers, Hiding and Seeking. Health problems and problems in accessing health care of undocumented female immigrants in the Netherlands (diss. Nijmegen), Enschede: 2011.