This blog was first posted on the O'Neill Institute for National and Global Health Law blog

Photo credit: selangorkini.my

Recently the United Nations Human Rights Committee made an important ruling, finding that the Canadian government violated the rights of an undocumented immigrant for denying her access to essential health care. The Committee recommended that the government review its legislation to ensure that undocumented migrants have access to essential health services as well as the payment of compensation to the complainant who was denied access to healthcare, for the harms suffered.

This situation is not unique to Canada. Globally, many countries’ legal and/or policy frameworks do not provide for affordable access to health services for undocumented or irregular migrants, who are often not covered under health insurance programmes. For example, in the United States undocumented migrants do not qualify for Medicaid or CHIP, nor can undocumented migrants purchase coverage under the Affordable Care Act. Documented migrants also face barriers and delays in accessing Medicaid and CHIP; legal permanent residents must wait five years after obtaining qualified immigration status before they are able to enroll. Many European countries also restrict access to health services for undocumented health services, such as Germany which only provides for emergency care, which is purportedly provided for free. One study found that at least ten European states even restrict access to affordable emergency care for undocumented migrants (e.g. they provide ‘less than minimal rights’) including Austria, Bulgaria, Czech Republic, Finland, Latvia, Luxembourg, Malta, Romania and Sweden.

In Canada, this matter had been the subject of years of domestic litigation before the dispute went before the Human Rights Committee. Since her refugee claim was not active at the time, the complainant, Ms. Toussaint, was living as an undocumented migrant and was denied coverage under the Interim Federal Health Program (IFHP), which is meant to cover medical services for refugees or those seeking refugee status. Prior to the HRC case, the matter had been challenged in Federal Court as well as the Federal Court of Appeal. Interestingly, the Canadian courts ruled that the denial of coverage constituted a deprivation of her right to security of person and life, yet they ruled that the state has the right to deny coverage for persons who do not have legal status to be in Canada. In line with clear UN treaty monitoring body language that human rights—to life, health, non-discrimination, among others—are universal, the Human Rights Committee decision provides specific jurisprudence affirming that state limitations of human rights protections on the basis of legal status are untenable under international law.

Canada should take this opportunity to align national legislation with its human rights obligations, including under the ICCPR and Optional Protocol by protecting the right to life for all, through provision of affordable essential health services, regardless of legal status. Other states should follow suit.