Petition opposing ending of exemption of poor illegal immigrants from charges for medical and hospital treatment; right to medical assistance for illegal migrants and their children; interpretation of provisions excluding illegal migrants from European Social Charter; rights of adult illegal migrants not violated but right of children to protection violated.
In response to the decision, the Government of France changed its policy. On 4 May 2005, the Committee of Ministers took note of the Committee’s legal decision and noted information received from the Government. This included a circular, issued on 16 March 2005, which provided that “all care and treatment dispensed to minors resident in France who are not effectively beneficiaries under the State medical assistance scheme is designed to meet the urgency requirement” (CIRCULAR DHOS/DSS/DGAS).
The case is still highly significant in providing an expansive interpretation of the Charter with respect to undocumented immigrants, as it did not make children’s entitlement to medical assistance conditional on lawful residency within the territory of a state party to the Charter. The case is also significant for its recognition of children’s particular vulnerability to violations of their rights. First, the Committee implicitly recognized in this case the urgent need to give effect to the child’s right to health. Second, the Committee recognized the connection between the Charter and the Convention on the Rights of the Child (CRC) and highlighted the need to interpret the Charter as a “living instrument”. This element of the decision is of particular relevance given that the Third Optional Protocol to the CRC (OP3-CRC) enters into force next month on 14 April. This Optional Protocol is likely to open new spaces for the development of the content of children’s ESCR, taking into account children’s position with regard to ESCR violations. Such position includes the potential impact of ESCR violations upon children and their reduced capacity to ensure the satisfaction of their rights themselves, as well as multiple forms of discrimination that children experience. This case was litigated in 2004, by FIDH, an ESCR-Net member organization. Since then there have been other ESCR cases that have built on this one and that may provide the Committee on the Rights of the Child with guidance as to how ESCR can be given effect.
Updated in March 2014.
Advocate: FIDH