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.
FIDH claimed that France had violated the right to medical assistance (Article 13 of Revised European Social Charter) by ending the exemption of illegal immigrants, with very low incomes, from charges for medical and hospital treatment. Further, the complainant alleged the rights of children to protection (Article 17) were contravened by a 2002 legislative reform that restricted access to medical services for children of illegal immigrants. The Committee found that France had acted contrary to the rights of children, but not adults. While Charter rights only extend to foreigners who are nationals of other Contracting Parties to the Charter and who are lawfully resident or work regularly within the State, the Committee emphasized that the Charter must be interpreted in a purposive manner, consistent with the principles of individual human dignity and that any restrictions should consequently be read narrowly. Therefore, by a 7 to 6 majority, the Committee held that any “legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State party, even if they are there illegally, is contrary to the Charter”, although not all the Charter rights may be extended to illegal migrants. On the facts, the Committee by a majority of 9 to 4, found no violation of Article 13 (the right to medial assistance), since illegal immigrants could access some forms of medical assistance after three months of residence, while all foreign nationals could at any time obtain treatment for “emergencies and life threatening conditions”. The Committee found a violation of Article 17 (right of children to protection), even though the affected children had similar access to healthcare as adults, since Article 17 was more expansive than the right to medical assistance. In the words of the Committee: “the Charter must be interpreted so as to give life and meaning to fundamental social rights. It follows inter alia that restrictions on rights are to be read restrictively, i. e. understood in such a manner as to preserve intact the essence of the right and to achieve the overall purpose of the Charter […] Article 17 of the Revised Charter is […] 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.” (par. 29 and 36)
Keywords: International Federation of Human Rights Leagues (FIDH) v. France, Complaint No. 13/2003, European Committee on Social Rights, Life, Right
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
