by Dr. Lucia Busatta, post-doc research fellow in constitutional law, University of Padua. Since 2008, Lucia collaborates with activities of BioLaw Research Team of the University of Trento. Her academic interests include the guarantee of fundamental rights, health law, migration law, gender and disabilities studies
The WHO-Europe report
In January 2019, the World Health Organization – Regional Office for Europe published a Report on the Health of Refugees and Migrants in the WHO European Region. Departing from the consideration that, in the European Region, “almost 10% of the population of almost 920 million are international migrants, accounting for 35% of the global international migrant population”, the report aims at drawing the state of health of migrants and refugees in Europe and the responses national health systems are putting in place.
Therefore, a research covering the 53 countries belonging to the WHO European Region was carried out investigating the level of protection of healthcare for migrants and mapping the problem of inequalities in access to health services.
The WHO report draws some distinctions between different categories of migrants (workers, families, refugees and asylum seekers) and between the needs of these persons upon their arrival in European countries and during their stay. To this end, data have been collected explaining how each country answers to these needs, the main sources of international and national law addressing the issue of healthcare coverage for foreigners, and the most relevant public health challenges faced in European countries. A very rich evidence shows the health status of refugees and migrants, their health needs and the organisation of health services dealing with this phenomenon. Factors such as communicable and noncommunicable diseases, mental health, occupational health, maternal and child health, and sexual and reproductive health are considered to evaluate how to tackle inequalities and difficulties in access to services. The report importantly refutes the preconception known as “the healthy-migrant effect”, which has already been widely questioned and investigated (for example, here). It highlights the serious and potentially costly risks that migrant faces both upon arrival (i.e. lack of immunisation; exposition to infections) and during their stay (i.e. noncommunicable disease, diabetes, cardiovascular diseases, linked to their style of life and to social determinants of health). The prevalence of mental disorders and the special needs of migrant women and children are also significant factors that impact on medical services.
The report concludes suggesting that efforts towards refugee and migrant-friendly health systems in Europe could be implemented by “overcoming the economic, logistic, linguistic and cultural barriers that refugees and migrants might encounter in accessing them”. In the opinion of WHO-Europe, important steps toward this objective would be to strengthen the “blocks” on which health systems are based, such as accessibility, information, primary care, financing and governance.
Europe and healthcare coverage for migrants: dream or reality?
The WHO report offers suggestions and reflections on the obstacles faced by migrants needing access to healthcare services in Europe. There are, essentially, two types of factors deserving due consideration: the first one relates to the circumstances and status of migrants in the country where they arrive, and the second one relates to the organisation of respective health systems.
As to the first element, the report points out that the correct configuration of categories is the first step in dealing with this issue. Migrants are forced to move by a variety of reasons, and they settle (either permanently or temporarily) in European countries under different circumstances and legal statuses. These circumstances in turn determine the level of healthcare protection they are entitled to in each country.
In Italy, for example, foreigners with a residence permit have the right and duty to be affiliated to the national health service (art. 34 of the law on immigration, legislative decree 286/1998). Therefore, a migrant legally present on the national territory is entitled to the same universal coverage granted to an Italian citizen. The same provision applies to asylum seekers once they fill in their application.
The recent adoption of a law-decree to deal with the “immigration emergency” (law-decree n. 113/2018, converted into law n. 132/2018) gave rise to a broad debate over, inter alia, the guarantee of fundamental rights to asylum seekers. One of the provisions of the law states that asylum seekers are not entitled to be registered into municipal civil registries. The meaning of such provision has been widely debated. In fact, it is not clear whether this ban could have practical consequences on their fundamental and social rights. As residence is often a necessary requirement to have access to public (and sometimes even private) services, asylum seekers may be ruled out from some basic services.
The new provision has thus been severely criticised because its primary effect is to impose an undue burden on access to healthcare (and other) services to asylum seekers: the right to healthcare of asylum seekers was not formally modified, but the main effect of the new law is to make it less accessible.
Since its entry into force, the new provision has been repeatedly challenged in Courts. Several judges ordered the local administration to register the applicant asylum seeker in the municipal civil registry. Others, such as the Tribunal of Naples, declared that the applicant asylum seeker has the right to be registered in the national health service by the local health administration, even without a previous registration into the municipal civil registry. This finding seems to be rather obvious, as the law provides that a foreigner legally present on the national territory has the right and duty to be affiliated to the health service. Nevertheless, these cases show that several local health administrations had some doubts about the application of the new law, and that the prohibition of registration into municipal civil registries is indeed undermining the effective guarantee of fundamental rights to asylum seekers.
In this respect, the Tribunal of Ancona recently challenged the constitutionality of this norm before the Constitutional Court. The Court’s decision is expected in March 2020.
The second relevant factor that impacts upon the granting of healthcare to migrants is organisation. As is well known, each European country has its own healthcare service. In each state, the organisation of services significantly varies, ranging from the universal coverage model (such as in Italy, the UK, Greece, Ireland, Spain and Portugal), to the social security healthcare system (such as in Germany, Austria, Belgium, France and the Netherlands). In addition, the structure of governance, e.g. federalism (such as in Germany) or asymmetric regionalism (as in Italy or in Spain), can also influence the level of healthcare coverage both for citizens and foreigners, with an impact on the effectiveness of accessibility to services, ancillary treatments and local subsidies.
Migrant-friendly healthcare systems: are they concretely possible?
Despite the kaleidoscopic features of European health services, it is nevertheless possible to single out a minimum common denominator for healthcare coverage among European countries: the international obligations to protect human rights which pool European states together. These obligations derive either from international treaties (such as the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities) or regional treaties such as the European Convention of Human Rights.
The principles deriving from the combined reading of these documents and of the most relevant case-law suggest that it is possible to draw some common lines as regards healthcare coverage in Europe. In the specific case of migrants, some (minimal) common guarantees already exist, such as universal healthcare coverage for minors and assistance to pregnant women. However, the path towards a migrant-friendly healthcare system is still very long and complex.
Just to provide some examples: both on arrival and during their stay, migrants do need linguistic and cultural support to deal with healthcare services and professionals. The linguistic gap is one of the hardest barriers on accessibility to health services for foreigners. From a cultural viewpoint, moreover, religion, individual values or beliefs can impact the way in which a person gets in touch with healthcare structures, doctors and facilities. Sometimes, a significant gap can affect the state of health of a person.
Another element which deserves due consideration is mental health. Asylum seekers are often in need of such services upon arrival because of the traumatic events suffered during their long and dangerous journeys. But mental health support may also become necessary in the long-term in consideration of the distress and difficulties experienced when integrating a new country.
The WHO report also makes reference to the importance of primary care, as well as to the attention to social determinants of health, which help in the prevention of noncommunicable and chronical diseases.
Starting with the assumption that all of these healthcare interventions are of central importance both for migrants and for the native population, the biggest difficulty in guaranteeing access to such services is their costs. As is well known, advanced health systems around the world are struggling to provide decent health services to all and maintain an economic balance. Universalistic healthcare services are, above all, encountering this challenge and the enduring dilemma of resource allocation.
In the light of these considerations, do we have to conclude that a migrant-friendly health service is just a matter of political choice? In an era of growing populism, this assumption could put migrants’ rights at serious risk. On the contrary, recouping the human rights’ perspective on the right to healthcare serves not only to highlight its solidarity-based nature, but also to promote a holistic concept of health, both for foreigners and for citizens. In other words, only if we consider that the protection and the granting of healthcare is a right of every human being, irrespective of origin or citizenship, can we seriously tackle the contemporary challenges that healthcare systems are facing in terms of coverage, resources and sustainability.
 Foreword to the report by Zsuzsanna Jakab, WHO Regional Director for Europe, page v of the report. The report is 114 pages long and is composed of 4 Chapters. The first one deals with definitions and migrations trends in Europe. The second one collects data on the health of migrants in Europe. The third Chapter suggests the creation of a migrant-friendly health system in the European region and the last one proposes a Strategy and Action Plan.
 By “healthy-migrant effect” we usually make reference to the assumption that immigrants are healthier than native population in spite of the fact that they frequently have lower socio-economic life statuses and less access to healthcare services. This is attributed to a sort of “self-selection” process that precedes migration. Yet, many scientific studies refuted this presumption.
 Report on the Health of Refugees and Migrants in the WHO European Region, page 92.
 After the Tribunal of Ancona, other judges, in Milan, Salerno and Ferrara, challenged the legitimacy of this provision before the Constitutional Court.