Health, migration and law: what challenges?

The reality of migration today is that a large majority of migrants in vulnerable situations either do not have access, or have only very restricted access, to healthcare. While the current importance of the migratory phenomenon and the need to provide protection to disadvantaged migrants has, in recent years, triggered a strong response from the international community in favour of the protection of the rights of persons, either refugees or migrants, fleeing their countries of origin; the central challenge of protecting and promoting the right of migrants to health seems as difficult to as ever. This article firstly sets out the international community’s recent political commitments to protect the human rights of migrants as well as the norms of international law applicable to the protection of the health of migrants, mainly contained within international human rights law and international refugee and migrant law. It then discusses the numerous barriers at the national level which block migrants, particularly in vulnerable situations, from accessing care. In doing so, this article highlights the profound paradoxes [...] DAGRON, Stéphanie. Health, migration and law: what challenges? sui generis, 2019, p.


I. Introduction
Over the past five years or so, media attention has been called to what has been termed a «migration crisis». Whether it is the «migration crisis» in Europe since 2015, particularly -although not exclusively -related to the situation in Syria 1 , or whether it is the «migration crisis» facing the American continent as a result of the profound political and economic difficulties of some Latin American countries 2 , these «crises» do not accurately reflect the reality of migration in the world over the past decades. Migration should not be considered a punctual phenomenon, intrinsically connected to an armed conflict or a natural, political or economic disaster or crisis. Moreover it does not only affect developed countries. In fact, it has been a constant phenomenon for decades 3 and most interna- tional migrants reside in developing countries 4 .
International law, for its part, has perceived this phenomenon for many decades, developing rules applicable to people in situations of migration. According to the UN, international migrants are defined as «any person who changes his or her country of usual residence», this can be voluntarily or involuntarily, and whether in accordance with national laws or in violation of these laws 5 .
The term 'migrant' thus covers several categories of population. Amongst these we find, first, all people who voluntarily, and legally, left their country of origin in order to work and settle in another country. The first international conventions on migrants were adopted by the International Labour Organization (ILO) in the 1930s to protect this category of person 6 . They define a migrant worker as someone «who migrates from one country to another with a view to being em- ployed otherwise than on his own account and includes any person regularly admitted as a migrant for employment» 7 . These people are theoretically subject to the same laws and living conditions as nationals 8 . Migrants also include people who have been forced to flee their country of origin because of persecution, war or extremely dangerous living conditions. Depending on the situation, these persons will be considered as belonging to the categories of refugees, asylumseekers, stateless persons, internally displaced persons or returnees 9 . Persons in these categories are considered particularly vulnerable and their protection has been entrusted to a specialised United Nations agency, the Office of the United Nations High Commissioner for Refugees (UNHCR), established in 1950 10 .
A final category of persons is constituted of people whose actual need for protection is not recognized by international law and who are therefore not taken into account in the UNHCR's estimates. The 1951 Convention Relating to the Status of Refugees (adopted on 28 July 1951 and entered into force 22 April 1954) defines in its art. 1 as a refugee, any person who has been considered a refugee under previous legal arrangements, as well as any person who «owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country (…)». An asylum seeker is a person who is seeking the protection of a State other than his country of nationality, but who hasn't been recognised as a refugee (see UNHCR, UNHCR Global Report 2017, Geneva 2018, p. 238). 10 UN GA, Resolution 428 (V) of 14 December 1950, Statute of the UNHCR, § 1.
These are people who do not meet the requirements of the previous categories and who are in an irregular situation under the applicable immigration legislation 11 . Among these people, there are those who have changed countries on the basis of an official document and who have remained in the country of destination beyond the authorized period. There are also those who have crossed a border without complying with exit or entry rules, or those who have remained in the country of residence after the rejection of an asylum application. Finally, children born to parents in an irregular situation are also included in this category.
Ultimately, the expression «migration crisis» is indicative not of the extent of the contemporary phenomenon of migration, but of a change in its nature.  The «migration crisis» has triggered a strong response from the international community in favour of the protection of the rights of persons, either refugees or migrants, fleeing their countries of origin 15 . Among these rights, the right to the highest attainable standard of physical and mental health is central, and its implementation remains a key challenge for States in terms of health and migration. Guaranteeing this right implies addressing a number of other (sub)challenges, such as access to a health care system that provides timely and appropriate care as well as the fulfillment of other human rights and fundamental determinants of health 16 . As a whole then, States have exhibited a very strong commitment to the protection and the realization of human rights of migrants -including the right to health -irrespective of their status (2). Despite this, the obstacles to the realization of the right to health are numerous, and circumventing them seems particularly difficult given their structural and political origins (3

II. The political and legal commitment of states in favour of the protection of migrants' rights
Recent political commitments by States to protect the human rights of migrants (II.1) have come to complement and reinforce weak international legal standards of access to health care (II.2).

States' political commitments
The current importance of the migratory phenomenon and the need to provide protection to disadvantaged migrants has, in recent years, led the international community to increase the protection of migrant health in accordance with their needs.  against poverty, ignorance and disease; the fight against injustice; the fight against violence, terror and crime» 19 . Looking back on the progress made since the adoption of the MDGs, the UN Secretary-General noted in 2013 that, in the fight against poverty, it was essential to eliminate the discrimination against migrant populations and the human rights restrictions imposed on them during the various stages of the migration process 20 .
The 2030 Agenda therefore expressly recognizes migration as an essential element of international development and makes the fight for well-managed migration and respect for human rights a crucial goal of the international community. Indeed, this cooperation should aim to «ensure safe, orderly and regular migration involving full respect for human rights and the humane treatment of migrants regardless of migration status, of refugees and of displaced persons» 21 . This crucial commitment to wellmanaged migration fits perfectly with the overall guiding principle of the Agenda to «leave no one behind» in «the collective journey» towards the eradication of «poverty in all its forms and dimen- The 17 SDGs must therefore be achieved by all, especially the most vulnerable people who need special support to benefit from progress and development. This clarification is essential, and it applies to all the objectives, and in particular Objective 3 which concerns the good health and well-being of all at any age.

b) The New York Declaration for Refugees and Migrants of 19 September 2016
The second document which embodied the UN's 2015 commitment to the protection of migrants took the form of a declaration for refugees and migrants. manner 24 . Health protection involves taking into account both the specific needs of refugees and migrants and, in particular, the health needs of women and children 25 , as well as the development of health systems so that care is provided in the community and, as far as possible, by national and local providers 26 .
Migrants have many specific health needs and, indeed, require appropriate care to deal with them. These needs vary during the different phases of migration 27 . During the phases of travel and arrival in the country of destination, phases which are characterized by high rates of mortality and morbidity, free emergency services are required 28 . Mortality declines however, in subsequent phases of installation and integration. The health status of migrants then depends on the conditions of access to care, socio-economic living conditions and, finally, the conditions of integration (work, education for children, etc.) 29  care is needed 30 . During the integration phase, continuity of care is essential and the treatment of chronic diseases must be ensured. Health needs are thus more diverse and it is necessary to provide additional interventions as well as to develop an appropriate funding system for care 31 .
Health needs vary further according to the age and gender of individuals, as well as their socio-economic living conditions. Migrant populations of young adult males do not have the same health needs as migrant populations made up of complete families, that is: elderly people, people with disabilities, people with chronic diseases, children or pregnant women 32 . Beyond this, needs vary according to the conditions of movement of migrants and their living conditions in the destination country 33 . In this respect, the epidemiological studies are clear: Migration can be beneficial for health when it is voluntary and properly regulated. On the other hand, migration will be a threat to people's health when it is coerced, when it encounters restrictive or even repressive regulations and when the living conditions in the country of destinationbecause of the status of asylum seekers, refugees or irregular migrants -are extremely difficult and marked by discrimination, insecurity, exclusion, dangerousness of work or exploitation 34

States' legal commitments under international law
The norms of international law applicable to the protection of the health of migrants are manifold. They mainly concern international refugee and migrant law (II.2.a) and international human rights law (II.2.b).

a) International refugee and migrant law
International refugee and migrant law is composed of binding standards that contain few health-related provisions, and non-binding standards that contain much more specific provisions on the protection of refugees' and migrants' health and their access to medical care. convention is interesting in that it applies to all workers, regardless of whether they are in a regular or irregular situation under the law of the country of residence 36 . It is thus specified that emergency medical care cannot be refused to migrant workers «by reason of any irregularity with regard to stay or employment» 37 . This said, not only has this convention not had the expected impact so far due to the limited number of States that have agreed to ratify it, as well as the numerous obstacles to its implementation 38 , but also the concrete obligations that it contains in terms of health matters remain extremely limited in scope. In reality, emergency care is only care that cannot wait due to the imminent danger to the life or health of those concerned. For example, emergency care is defined in the French social code as care «whose absence would be life-threatening or could lead to serious and lasting deterioration of the person's health» 39 . It is therefore much more limited in scope than primary health care, the latter being considered essential for the realization of the right to health 40 . the «Guiding Principles on Internal Displacement» 41 . According to these principles, States should establish at a minimum essential medical services and sanitary facilities in all circumstances and without discrimination 42 ; they must also provide to «all wounded and sick internally displaced persons as well as those with disabilities (…), the medical care and attention they require», such as «psychological and social services» 43 . These clarifications are interesting even if the formulations retained leave States, in the end, an important margin of manoeuvre. Indeed, care must be provided «as far as possible and as soon as possible» and only «special attention» is required with regard to women's care, including reproductive and sexual health, and the prevention of communicable diseases 44 .
More recent soft law instruments however, reflect a broader approach to refugee and migrant health protection. This is true of UNHCR's 2014-2018 Global Strategy, which provides an extensive interpretation of Article 23 of the Refugee Convention 45 . This is also true of the two global compacts adopted by the international community to implement the commitments of the New York Declaration mentioned above.  48 , clarify the nature of the national and international efforts required in relation to health. Recognizing that both migrants and refugees enjoy human rights, irrespective of their migratory status, and regardless of the phase of the migration in which they find themselves, these two covenants place special emphasis on two objectives: on the one hand, to take into account the health needs of migrants 49 and refugees 50 , which means that medical care cannot be limited to emergency care; while on the other, ensuring the strengthening of national health systems.
In accordance with the Global Compact for Migration, this second objective is to be achieved by «strengthening capacities for service provision, facilitating affordable and non-discriminatory access, reducing communication barriers, and training health-care providers on culturally sensitive service delivery, in order to promote the physical and mental health of migrants» 51 . In the context of refugee protection, it is similarly stated that it is essential «to build and equip health facilities or strengthen services» 52 , to encourage «[d]isease prevention, immunization services, and health promotion activities» 53 and to facilitate «affordable and equitable access to adequate quantities of ____________________________ medicines, medical supplies, vaccines, diagnostics, and preventive commodities» 54 .

b) International human rights law
The contemporary interpretation of the obligations on States deriving from international refugee and migrant law 55 is explicitly based on international human rights law and on the more recent embodiment of the right to the highest at-

III. Access to health care in migration policies
At the national level, there are numerous barriers to access to care that particularly affect migrants in vulnerable situations (III.1), and these barriers to access stem from structural and political causes (III.2).

Multiple barriers in accessing care
The analysis of national laws applicable to the health of migrants is a difficult undertaking, the conditions of access to care being extremely variable from one country to another (III. ble from one country to another and depends on the legal status of migrants 73 . This access may be the same for nationals and regular migrants permanently installed in a country in which universal health coverage is a reality. On the other hand, such access will either be nonexistent or limited to emergency care for irregular migrants. Between these two extremes, irregular migrants, asylum seekers and refugees may also be able to access care that is considered necessary or essential, although different from that for nationals but equivalent to primary health care, including prevention, rehabilitation and even dental and mental health.

b) Barriers to access to care for the most vulnerable migrants in Europe
Examples of legislative provisions that constitute barriers to access to health care are numerous and generally, but not exclusively, concern persons in irregular situations. These barriers can be direct when they take the form of conditions for access to care. This is the case when access is conditioned on a minimum period of residency in the destination State. In 2003, the European Committee of Social Rights 82 considered that the residency requirement of three months imposed on migrants in France before allowing access to care other than emergency care was contrary to art. 17 of the Charter which protects the right of children to «grow up in an environment which encourages the full development of their personality and of their physical and mental capacities» 83 .
This is also the case when access to care is conditioned on the patient paying full or partial fees for care. In 2006, the Special Rapporteur on the right to health found that the obligation of full payment of health care, including emergency care, imposed by Swedish law on irregular migrants was contrary to the right to health as guaranteed under the ICESCR 84 . from the existence of overcomplex administrative procedures. In Belgium, for example, the conditions of access to preventive and curative care covered by Urgent Medical Assistance (AMU) for persons residing illegally 85 , have been considered as leading to unfair access to such care 86 . In accordance with the applicable rules, the award of the AMU is in fact conditioned by an administrative inquiry which may be long and complex. In particular, this inquiry must determine, on the one hand, whether the person illegally residing has sufficient means of subsistence to ensure a life in dignity, in which case they will not be able to benefit from the AMU and, on the other hand, if urgent medical care is required, the urgency must be attested by a medical certificate.
Limitations to access are, however, indirect when the measures adopted, while not directly addressing healthcare do, as a result, impact on access to healthcare. Such limitations exist, for example, when irregular migrants go without medical care for fear of being reported to the immigration authorities. In many States, these fears are well-founded, as States impose an obligation of cooperation between health care and immigration services, or delay defining precise rules prohibiting this cooperation 87  has been strongly criticized by civil society and professional associations 90 as well as by those in charge of controlling the collection or use of medical data 91 . Critics point out the negative consequences of such a practice: fear of identification and expulsion firstly results in the renunciation of health care at the prevention or treatment phases, which can lead to the use of emergency services further down the line 92 . Another consequence is the possible use by individuals of the identity of other persons not in an irregular situation and the discontinuity of medical information concerning these persons 93 . available health services and the lack of an insurance system or state funding scheme to cover the costs of health care 101 .

Structural and political causes of barriers to access to care
Access to care for disadvantaged migrants in developing countries that do not provide access to basic health services for their population is therefore illusory. The international community seems recently to have become aware of the need to strengthen the health systems in all their components in order to promote the health of all without distinction of nationality 102 . UNHCR has also been insisting on this point for a few years as it has been faced with the ethical problems of allocating more comprehensive health care in refugee camps than the health care available and accessible to the national population. This said, UNHCR notes generally that there are inequalities in access to appropriate curative and preventive health care for refugees on the one hand and the local population on the other. It is not uncommon for it to ensure that the level of health care provided for populations close to refugee assembly areas is improved 103 . The strategy adopted in 2014 is therefore aimed at the development of national health systems. Its aims are to enable refugees and host populations to access comparable services and to avoid the development of unsustainable parallel systems 104 .

b) Political causes: access to care for migration policies
In developed countries, political reasons lie behind barriers to access to health care for migrants, including irregular migrants. In many countries, access to care will depend on political strategies developed not according to the health needs of migrants, but in terms of migration policy choices. Contemporary migration policies in high income countries, despite States' commitments to the protection of the rights of migrants, are increasingly restrictive. With one hand, States adopt conventional security measures aimed at restricting the mobility of individuals 105 , while with the other, they adopt measures affecting the socioeconomic living conditions of individuals, including measures relating to access to health care. As a whole, the purpose of these policies is to discourage international migrants from settling in their territory or to encourage those already present to leave voluntarily. There are many examples of this, and the links between migration policy and direct or indirect barriers to access to care have been criticized by non-governmental human rights organizations, the academic world, public institutions, and the courts.
For example, in France, the Comité consultatif national d'éthique (National consultative ethics committee), stated in an opinion issued in October 2017 that migrants' access to care was insufficient 106 , recalling that «from an ethical point of ____________________________  109 . These changes led to a reduction in the coverage of care previously provided free of charge to disadvantaged migrants (refugees, asylum seekers and migrants in situations of high vulnerability) 110 . The Court clearly criticized the fact that these amendments, which particularly affected migrants in vulnerable situations, served as part of a particularly restrictive migration policy. For the Court, the sole purpose of these amendments was to make the lives of people in vulnerable situations even more difficult, in accordance with a policy which aimed both to discourage migrants from seeking refuge in Canada and to encourage migrants to voluntarily leave the country 111 . The Court accordingly considered that ____________________________ grant health norms are imprecise and incomplete.
This being said, it is possible to criticise State practices in the light of international human rights law. The development of this branch of international law and of the normative content of the right to health, as well as the progressive clarification of the minimum obligations on States are, indeed, markers of progress which reveal and highlight the profound paradoxes between State's international commitments on the one hand, and State practices to protect and promote migrant access to healthcare on the other. On top of this, such progress permits more precise interpretations of the binding rules of international refugee and migrant law, rules that are unlikely to be renegotiated and which are couched in vague terms. In an era where international law is often flouted and where certain States are insensitive to the political pressure exerted by the international community, clarifying international human rights law is essential for the protection of migrants, regardless of their status, as well as, consequently, for the achievement of health for all in the 21 st century.