International Federation of Human Rights Leagues (FIDH) v. France, Complaint No. 13/2003
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.
The International Federation of Human Rights Leagues (FIDH) claimed in a petition before the European Committee of Social Rights (which judges compliance of State parties with the European Social Charter) that France had violated the right to medical assistance (Article 13 of the Revised European Social Charter) by ending the exemption of illegal immigrants, with very low incomes, from charges for medical and hospital treatment. FIDH further alleged that 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 consistent with the principles of individual human dignity and that any restrictions should consequently be read narrowly. Therefore, 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. However, the Committee found no violation of Article 13 (the right to medical 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 …that restrictions on rights are to be …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.”
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).
International Federation of Human Rights Leagues (FIDH)
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)
