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Spain: Constitutional Court ruling on health service exclusion of undocumented migrants ignores human rights





The Center for Economic and Social Rights (CESR), Amnesty International, Médicos del Mundo, Red Acoge, REDER and semFYC reiterate that the Royal Decree 16/2012 contravenes international human rights norms and standards, and is regressive with regard to the right to health.

Madrid/New York, 4 August de 2016: The Center for Economic and Social Rights, Amnesty International, Médicos del Mundo, Red Acoge, la Red de Denuncia y Resistencia al RDL 16/2012 (REDER) and the Spanish Society for Family and Community Medicine (semFYC) voice their concern over the judgement issued by the Constitutional Court of Spain last week which upholds Royal Decree 16/2012 (RDL 16) and confirms the exclusion of undocumented migrants from free access to health services.

The organizations regret the Constitutional Court’s decision to ignore international human rights treaties and recommendations issued by regional and international human rights mechanisms, especially given that the Spanish Constitution itself requires that the rights it contains be interpreted in the light of international treaties. On the contrary, the Constitutional Court ruling gives carte blanche for fundamental rights to be shaped according to the government’s general economic criteria.

The Constitutional Court, through this ruling, legitimizes the health reform under the premise of the existence of a “situation of urgent and extreme necessity” and of “grave economic difficulty without precedents since the creation of the National Health System”. In this sense, and without reference to the requirements of which Spain has been reminded on repeated occasions by both European and United Nations human rights bodies, the Court has considered it proportional to limit access to free health care for undocumented migrants – a sector that is among the most vulnerable in society – with the objective, according to the ruling, of preserving and maintaining the public health system. In this way, it consecrates a regressive vision, without sufficient justification, of the right to health in Spain.

The signatory organizations highlight that the Constitutional Court has openly ignored the criteria that, according to international law, must be respected in austerity policies if these are to comply with obligations derived from international human rights treaties of which Spain is a member state. These are that: any regressive measure must be temporary, strictly necessary and proportionate; cannot be discriminatory; must take into account all possible alternatives; and must identify and protect the minimum core content of the right to health. The context of economic crisis does not reduce or eliminate the human rights obligations of the state.

The undersigned organizations also voice their concern over the lack of a prudent and detailed analysis that supports and thoroughly documents the “grave economic difficulty unprecedented since the creation of the National Health System” which is referred to in this ruling which seriously undermines the right to health with potentially serious impacts among the population affected.

Since the RDL came into effect on 1 September 2012, more than 748,000 people have been left without a health card and have been excluded from the National Health System according to the most recent data provided by the Government.

The connection between health, life, dignity and physical integrity

The Constitutional Court estimates in its ruling that the health reform does not constitute a violation of the right to health, considering this to be a mere “guiding principle of economic and social policy”. The undersigned organizations regret this restrictive interpretation, which allows the legislator to regulate conditions of access to this right and to determine who is entitled to it, without taking into account the obligations imposed on Spain by international treaties concerning the right to health.

Equally, the Court considers that health exclusion is not necessarily contrary to human dignity, given that this is guaranteed by access to emergency services for undocumented migrants, minors and pregnant women. However, the lack of access of preventative health care services in primary care, along with specialized and palliative care when these are necessary, could have a serious impact on the lives of these people.

Moreover, the Constitutional Court ignores the connection between the right to health and the right to life and to physical integrity, something that has been emphasized in previous resolutions regarding the legislation of the Basque Country and Navarra autonomous communities concerning the universality of the right to health. In these cases, the Court affirmed “the right to health and the right to physical integrity of persons affected by the contested measures, along with the convenience of avoiding risks to the health of the society in its entirety, possess a singular importance in the constitutional framework and cannot be seen as diminished for the mere consideration of an eventual economic saving”.

However, in this recent ruling the Court contradicts itself, concluding that the exclusion of undocumented migrants from health services mandated by RDL16 is “coherent and congruent with the problems that [the government] wants to solve and the economic situation that it intends to control”. In this sense, Amnesty International, the Center for Economic and Social Rights, Médicos del Mundo, Red Acoge, REDER and semFYC recall that more than a dozen United Nations mechanisms along with the European Council have branded the health reform as “lamentable” and “contrary to the principle of non-discrimination” and have called on Spain to restore the universality of the right to health.

Furthermore, the Constitutional Court seems to ignore that, in so far as the Spanish Public Health System is financed by direct and indirect taxes, these persons also contribute to its sustainability.

The undersigned organizations reaffirm our commitment and determination to achieve the full restoration of universal health care in Spain and, as such, we will continue demanding that the Government and the Congress strike down RDL16 and restore a system of universal access for all persons regardless of their administrative status.

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  • To download CESR's recent Spain Factsheet, which details retrogressions across a variety of economic and social rights in the country, click here.