UN finds rights violations in irregular migrant being denied essential health services

Publish Date:

Wednesday, August 15, 2018

The UN Human Rights Committee recently issued a positive decision in Toussaint v. Canada, a case examining the government’s life-threatening denial of health coverage based on Ms. Nell Toussaint’s irregular migrant status. Member organization Social Rights Advocacy Centre was a co-representative of the claimant in the case, and five members submitted a collective expert opinion – Center for Economic and Social Rights; Centro de Estudios Legales y Sociales; Global Initiative for Economic, Social and Cultural Rights; Section 27, and Socio-Economic Rights Institute of South Africa – as did the Canadian chapter of member Amnesty International.

In providing expert international and comparative analysis to the Committee, Members emphasized the interdependence and indivisibility of all human rights, noting in particular the connection between health care and the right to life. Members also argued that emergency health care alone is not a sufficient protection of the right to life, that immigration status is a prohibited ground of discrimination, and that denying irregular migrants access to health care necessary for life is not reasonable.

The Committee found that in denying Ms. Toussaint access to relevant health services based on her irregular migrant status, resulting in life-threatening harms, Canada violated her right to life. Further, Canada’s distinction between “regular and irregular migrants” for the purposes of health coverage was discriminatory and “not based on a reasonable and objective criteria” given that potentially irreversible harms to Ms. Toussaint’s health were at stake.

What is the significance of this decision?

This decision is the first time a UN human rights treaty body has considered a situation in which a person with irregular migrant status was denied access to essential health care necessary for the protection of life.

The Committee’s findings in relation to the right to life provide useful guidance for states in relation to compliance with their human rights obligations in similar situations, particularly in jurisdictions where the right to health is not explicitly protected within national legal frameworks. The Committee reiterated that situations concerning health access may be relevant to the enjoyment of a range of human rights, including the right to life and non-discrimination protections, therefore underscoring the interdependence and indivisibility of all human rights. Further, the Committee affirmed that the right to life requires states to take positive measures in certain circumstances, including providing access to existing health care services that are reasonably available and accessible, where lack of access to the care would expose a person to a reasonably foreseeable risk that can result in loss of life.

The Committee’s rejection of Canada’s restriction to essential health services on the basis of immigration status is a clear reminder that the human rights framework requires consideration of people’s lived experiences rather than the strict application of apparently neutral laws or policies. This means that if a state wants to justify that action taken in pursuit of any legitimate immigration law or policy aim was reasonable in practice, it would have to show that, among other factors, it has taken into account the precarious situation of disadvantaged and marginalized groups, prioritized grave situations or situations of risk, and exercised its discretion in a non-discriminatory manner.

For more information on the case, please see:

A full case summary will be included in our Caselaw Database in coming months.