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Saturday, September 19, 2015
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Nature of the Case

Petition opposing ending of exemption of poor illegal immigrants from charges for medical and hospital treatment. This case centered on the right to medical assistance for illegal migrants and their children.

Enforcement of the Decision and Outcomes

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 n. 2005-141 of 16th March, 2005).

Significance of the Case

The case is highly significant in providing an expansive interpretation of the Charter with respect to undocumented immigrants, as it did not make access to rights conditional on lawful residency within a territory. The case is also very important for its recognition of children’s special vulnerabilities to rights’ violations. First, the Committee implicitly recognizes in this case some degree of urgency and need of immediate realization of children’s right to health. Second, the Committee recognizes the connection between the Charter and the Convention on the Rights of the Child and highlights the need to interpret the Charter as a “living instrument”. Such positioning presents further relevance in wake of the Optional Protocol to the CRC entering into force (April 2014). The Optional Protocol might open new spaces for the development of the content of children’s ESCR, taking into account children’s specific vulnerabilities to ESCR violations, in terms of their reduced capacity to meet their needs and to negotiate special rights, the long term effects of ESR violations on children, as well as multiple forms of discrimination (Aoife Nolan), such as was present in this case.

(Updated August 2015)

Groups Involved in the Case

International Federation of Human Rights Leagues (FIDH)

Ruling