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Ares(2016)763285 - 12/02/2016

The European HIV Legal Forum (EHLF) – final report

AIDS Action Europe - 2015

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 Table of content

Report of the AAE Office p.2

Annex 1 – List of partner organizations p.5

Annex 2 – Minutes of the EHLF kick-off meeting in Budapest with annexes p.6

Annex 3 – EHLF legal survey questionnaire p.40

Annex 4 – EHLF advocacy tool and collection of good practice materials p.44

Annex 5 – Legal research and report p.48

Annex 6 – Minutes of the EHLF project meeting in Berlin p.143

Annex 7 – Report of EHLF member organizations p.150

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 1. Report of the AAE Office

Introduction and kick-off of the project

Built up on the results of the pilot project, the EHLF project covering 2015 was rolled out in
10 European countries: France, Germany, Greece, Hungary, Italy, the Netherlands, Poland,
Serbia, Spain and the UK. After recruiting and setting up the contracts with the partners
(Annex 1), a kick-off meeting was organized in Budapest, Hungary on December 15 and 16,
2014. The aim of the meeting was to introduce the partners to the upcoming activities as
they were outlined in the application and structured by the three work package objectives
and activities. During the meeting the partners signed up for different work packages and
defined the actual sub-objectives and sub-activities under each project objective. Please find
attached the report of the Budapest meeting together with the work package log frames
that give a detailed overview over the objectives and activities in regard of the work
packages. – see Annex 2 for meeting minutes and Work Packages

In 2015, AAE was able to hire a project manager who took over the coordination of the EHLF.
Ferenc Bagyinszky who was representing the Hungarian Civil Liberties Union left his position
in Hungary and joined the office of AIDS Action Europe as project manager as of March 16,
2015. Among other projects he took over the management of the EHLF network.

The HCLU seat was filled in by Rita Bence, Head of the Patients´ Rights Program at HCLU. Rita
played an active role in the pilot project phase of EHLF, being the Hungarian legal expert in
the project and also participated in the project planning meeting in 2014, a result of which
was the application to ViiV´s Positive Action program. In October 2015, Rita left the HCLU
and the final activities of the program were finalized by Stefánia Kapronczay, executive
director of HCLU.

There was also a change of representatives from AIDES. Francesca Belli announced that she
is taking a sabbatical year from mid-2015. She was replaced by Richard Stranz who was
responsible for project activities. Richard was not able to join the second meeting of the
project in October 2015, thus his colleague Nicolas Klausser was nominated by the
leadership of AIDES to replace him during the meeting. Both Richard and Nicolas played an
active role in the final activities and reporting of the project.

Due to Ferenc joining the AAE Office in March, some of the activities within the work
packages could only start with a delay. However, there was a reschedule of activities
performed in the first few weeks, which still allowed a timely end and reporting of the
project. Participants of the Work Packages (WP) – agreed during the Budapest meeting –
were reconfirmed.

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Project activities in 2015

Development of EHLF survey

WP1 was working on developing the survey instrument of the pilot phase. A new
questionnaire was developed - see Annex 3 - and after input from the rest of the EHLF group,
the questionnaire was finally launched in July 2015. Country reports were expected and
were ready by September 15th and the results of the national survey were integrated into
the research report by the legal expert.

Country specific tasks

During the Budapest meeting several mapping tasks were identified both in WP2 and WP3
such as identifying legal experts/services/NGOs and other relevant services and focal points
(WP2) or collecting good practices on advocating for universal access and human rights
literacy materials for PLHIV including one online resource from the UK:
http://mycaremyvoice.org.uk/ (WP3). Based on the results of the country reports a table
and a map was created that can be used as an advocacy tool both at international and
national level. The chart shows access to different health care services for migrants with
irregular status, while the map uses different colours and percentage of level of access in
different countries, 100% being universal access – 0% meaning no access at all. The map and
the chart are ideal tools for presentations and also for posters at meetings and conferences.
– see Annex 3 for advocacy tool and collection of good practice materials

Legal expert

The office developed a term of reference for the legal expert with input from members of
WP 1. In May the office issued a call for contract for services and several legal experts
working in the field have been directly approached according to internal regulations of
Deutsche AIDS-Hilfe, based on German law. Gaia Inverardi from Milan, Italy was selected for
the work. Gaia is a human rights lawyer and has a long-standing volunteer working
experience in the fields of HIV and migration. She was also member of the working team that
planned the second phase of EHLF project. Gaia prepared her report and it was finalized
based on input from EHLF members and AAE office. - see Annex 6 for the legal research and
report

EHLF members meeting - Berlin

The second meeting of the EHLF members took place in Berlin, Germany on October 5-6. The
aim of the meeting was to finalize the country relevant information and tasks, and to agree
on the final tool of the country reports (European map of access). – see Annex 7 for the
Berlin meeting minutes

Promotion of EHLF network and its results

Keeping access of migrants with irregular status on the agenda

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AIDS Action Europe is co-chairing the HIV/AIDS Civil Society Forum (CSF), the informal
advisory board of the European Commission. Besides AAE, several EHLF partner
organizations are also members of the CSF. During the XXII CSF meeting the preliminary
results of the EHLF project were presented.

AAE Office has sent an abstracts on the project to 6th European Conference on Migrant and
Ethnic Minority Health, Oslo 2016, and plan to jointly organize the European Networking
Zone during the IAS2016 Conference in Durban, SA, where access to health care for migrants
will be one of the topics and the findings of the EHLF project will be presented.

Future activities and plans for the sustainability of the network beyond 2015

Sustainability of EHLF network

The October EHLF meeting in Berlin also focused on the sustainability of the EHLF network.
Decision included: cooperation with other regional and international initiatives working in
the field; strengthening cooperation of EHLF members; broadening the scope of
participating countries to other European countries; and broadening the scope of the focus
of the EHLF network, namely running similar projects in the field of HIV and labour.

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Annex 1 – List of partner organizations

AIDeS – France

Deutsche AIDS-Hilfe (DAH) – Germany

PRAKSIS – Greece

Hungarian Civil Liberties Union (HCLU) – Hungary

LILA Milano – Italy

SOA Aids Nederland - the Netherlands

SIEĆ PLUS – Poland

Q-Club – Serbia

CALCSICOVA – Spain

National AIDS Trust (NAT) - the United Kingdom

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Annex 2 – Minutes of the EHLF kick-off meeting in Budapest and Work Packages

Minutes of the EHLF Meeting in Budapest

Participants:

Country Organisation Representative Email-address

Hungary TASZ/HCLU Ferenc Bagyinszky bagyi.feri@tasz.hu
Italy LILA Milano Lella Cosmaro l.cosmaro@lilamilano.it
The Netherlands SOA Aids Nederland Ronald Brands RBrands@soaaids.nl
UK National AIDS Trust Sarah Radcliffe Sarah.Radcliffe@nat.org.uk
Germany Deutsche AIDS-Hilfe Tanja Gangarova Tanja.Gangarova@dah.aidshilfe.de
Greece PRAKSIS Marianella Kloka mkloka@gmail.com
Poland SIEĆ PLUS Wojciech J. Tomczyński voytek46pl@gmail.com
Spain CALCSICOVA Ramón Espacio espacioramon@gmail.com
France AIDES France Francesca Belli fbelli@aides.org
Serbia Q-Club Nenad Petkovic nenad.petkovic@q-club.org.rs
AIDS Action Europe Michael Krone Michael.Krone@aidsactioneurope.
org

Monday, December 15, 2014

1. Opening

Michael Krone as Executive Coordinator of AIDS Action Europe, the implementing organisation of the
EHLF, welcomes all participants. He invites everybody to introduce themselves and the organisation
and the field of work, s/he is working for or working in. Then, the agenda of the meeting is adopted.

Ferenc, who has been part of the EHLF from the beginning on, presents the development and
activities of the EHLF (see Annex 1).

2. Legal situation of migrants with irregular status in the participating countries

Before the legal situation in the countries was presented by the participants, the term we should use
to describe the target group was discussed. Eventually the group agreed on the following working
term: People with no entitlement to HIV services due to their current legal residence status.

This is how the situation in the participating countries is described:

2.1 The UK

On 1 October 2012 HIV treatment and care became accessible, free of charge, by undocumented
migrants living in England. This includes access to ART. HIV treatment and care are provided to all
people resident in England at the same quality standards as is enjoyed by UK citizens – regardless of
immigration status.

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By undocumented migrants people without current lawful residency status are meant. In practice
the main groups included are:

• people who have overstayed after the expiry of their visa

• people who have had an asylum claim refused but remain in the UK, and

• people who have entered the country unlawfully.

In the UK the National Health Service (NHS) is a comprehensive health service providing free
diagnosis, treatment and care to all UK residents at the point of need. It is funded by taxation i.e. it is
not an insurance-based or contributory system.

The National AIDS Trust has successfully launched a campaign to make access to treatment and care
possible for undocumented migrants. A detailed description of this campaign can be found under
topic 3 “Good practices” (see Annex 2).

2.2 Italy

The Italian health system is financed by the Servizio Sanitario Nazionale (National Health Service)
through its regional "Servizi Sanitari Regionali". SSN is funded through general taxation (direct and
indirect). Such a system foresees the share of the costs paid by citizens through fees ('tickets') which
are proportional to income and social status (e.g. no cost for the unemployed) or health status (e.g.
no costs for certain diseases).

Healthcare for undocumented migrants is financed partly by the Servizio Sanitario Nazionale through
its regional "Servizi Sanitari Regionali". It is funded through specific funds approved by the CIPE
(Comitato Interministeriale per la Programmazione Economica) and through the Ministry of Internal
Affairs. Coverage of health costs is not fully provided; however essential care and urgent care are
ensured, including long term care, for certain specific conditions, e.g. pregnancy, but also
transmittable infectious diseases, including therefore HIV. The different Regions enforce National
laws differently, providing different coverage. In the Lombardy Region, access to primary care is not
provided, and primary care is generally guaranteed by NGO services, which can in some cases
prescribe tests and treatments with the same prescription procedures followed by the National
Health system. HIV diagnosis and care, as well as hospitalisation in hospices and day centres are
ensured at the same conditions guaranteed to Italian citizens.

Differences between lawful citizens and undocumented migrants are not due to legislation or
barriers to access, but to difficulties in accessing testing and treatment (information, ignorance,
cultural and language barriers).

2.3 Germany

According to estimates, there are between 200,000 and 500,000 „people without papers“ i.e. people
without a legal residency status, living in the Federal Republic of Germany.

Germany's immigration policies focus mainly on combating illegal immigration, without any attention
to the rights of undocumented migrants. In principle, there are certain minimal rights available to
undocumented immigrants in Germany, including a reduced level of medical treatment.

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Theoretically, undocumented individuals have a right to medical care according to the German
Asylum Seekers Benefits Act (AsylbLG). However, this is limited to acute illnesses and pain - it does
not include any general medical care. In addition, as sponsors, social services (social welfare offices)
are legally obligated to disclose personal information to the immigration authorities. This means that
whenever they enter the doctor‘s office, undocumented migrants always run the risk of landing in a
detention center awaiting deportation. Paragraphs 87 and 96 of the 'Aufenthaltsgesetz' (The
Residence Act), which are commonly referred to as 'Denunziationsparagraphen', require public
institutions to report illegal immigrants to the foreigners' registration office. While hospitals and
independent physicians are not obliged to do so, social welfare offices have to adhere to this law.
Example: If people without papers are diagnosed as HIV positive – they have to apply for a
Krankenschein (illness certificate) in order to be eligible for public subsidies from the social welfare
office. The obligation of the welfare offices to report undocumented immigrants to the foreigners'
registration office, however, effectively prevents access to health care.

For undocumented women, access to maternity care and health care for children is only possible if
they successfully apply for a Duldung (exceptional leave to remain), which is usually only granted
during the so-called “period of maternity” (from 6 weeks prior to delivery to 8 weeks after delivery;
12 weeks in cases of multiple or pre-term births) for the reason that mother and child are deemed
unfit for travel during this period and can thus not be deported.

There are some existing models trying to improve the medical care and treatment for immigrants
without papers in Germany such as “Bremer Modell”, Münchener Modell, Anonymer
Krankenschein). They focus on acute illnesses and pain and none of them can cover the cost of HIV-
Therapy.

2.4 France

In 2013, immigrants made up one third of people living with HIV in France compared to 21% in 2003.
Among these migrants, some have become French nationals and others (77%) have retained their
foreign status; in other words one quarter of people living with HIV are foreigners. The majority are
from sub-Saharan Africa, 24.4% compared to 8.6% from the European Union and 5.6% from North
Africa. The main countries of origin are: The Ivory Coast, Cameroon, Congo Brazzaville, the
Democratic Republic of Congo and the Central African Republic. Women make up the majority,
representing 66.5%. Meaning that, this is the most affected community after MSM and a priority
population in the fight against HIV.

Like a lot of European Union countries and North America, France has a purely utilitarian vision of
immigration, a selective policy, implying that it’s useful and profitable for the French economy.
Nonetheless, in the name of fundamental values, it still provides residual rights for families and
patients, who are not considered profitable for the economy. For foreign people in poor health,
France has a specific protection. In 1997, an intense mobilisation / gave rise to a new law / aiming to
protect sick foreigners from being deported. And the following year, France provided specific
residence permits for immigrants in poor health. To be entitled to this residence permit, the person
must meet some strict requirements.

 1st condition: the person must reside in France (it is not a Health visa for people wishing to
receive Healthcare in France). According to several studies, less than 10% of migrants know

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 their HIV status before arriving in France. (notamment INVS 2002, Comede 2012 et MDM
2009).
 2nd condition: the person is suffering from a serious illness and needs medical care; this
could include HIV, a psychological disorder or cancer, etc. There is no list of illnesses.
 3rd condition: access to Health care is not guaranteed in the country of origin.

Today around 32 000 foreigners benefit from these residence permits and approximately 6 000 of
them are HIV positive (for your information, there are 150 000 HIV positive people in France). This
represents 0.9% of the 3.7 million foreigners living in France. This figure has remained stable for
years now. More information about the French situation can be found in Annex 3 about the French
observatory on quality of life among PLWHA with a residence permit for health reasons

2.5 Spain

Until September 2012 access to public health care was universal regardless of administrative status.
The Decree 16/2012 of 20th April has changed the insurance model, leaving hundreds of thousands
without the right to health care, mainly migrants with irregular status. The Royal Decree 16/2012,
passed on April 20th, links the right to health care and public financing of medicines to the
administrative and employment status of citizens, breaking up the previous existing SNS model. Its
application in Valencia and in the rest of Spain creates differences and barriers in access to diagnose
and treatments which affect the most disadvantaged and vulnerable groups, especially those without
financial resources, citizens and foreigners without residence permits. The 16/2012 decree is not a
law but a “Real Decreto ley”, which means that it has been passed by the executive and has not
gone through parliamentary debate. This decree was adopted without the consensus of the political
forces and civil society. This decree was made in a rush and wording is vague and confusing. It limits
the assistance of those not insured to emergencies, pregnant women and minors, although in fact
people without insurance are not getting assistance in these cases either.

This decree was rejected in many regions, since although the central government grants the insured
status of the citizens using the National Institute of Social Security and Health Care, the different
regional autonomies are the institutions which fund and deliver services, creating a conflict of
competence. Several Autonomous Communities have appealed against the “Real Decreto ley”, or
Royal Law-Decree because they consider it unconstitutional: Navarra (July 2012), Andalucía, Asturias
(September 2012), the Basque Country, the Canary Islands and Catalonia (February 2013). Ten
regions have established measures to provide a Regional Health Care Card for immigrants in irregular
administrative situations. Eight of them in the form of a "specific program" for the particular group of
uninsured people without resources (Aragon, Canary Islands, Cantabria, Catalonia, Extremadura,
Galicia and Valencia); and two recognizing their right to health care on equal terms with the rest of
the resident population (Andalusia and Asturias). These programs have been mainly developed
during 2013.

In other regions conditions of access to health care without issuing a medical health card have been
defined for certain cases. Mainly for diseases that pose a risk to public health, such as mental
illnesses and chronic diseases. These criteria are different depending on the regions.

The implementation of these specific programs has been very weak and confusing. For instance In
the Canary Islands, six months since the start of the program, only 42 people had been able to meet

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all requirements for access to health care the program covers. The last known data in February 2014
raise that figure to 145 people. Let us recall that only in this autonomous community 48,000 health
cards have been withdrawn since September 1st.

These are the main situations faced by thousands of immigrants and people without resources as a
result of the health care reform:

 lack of access to health and social care due to administrative barriers or lack of adequate
information / guidance for first application or the renewal of health card . Similar barriers
occur when applying to access to special programs created by some autonomous
communities
 Difficulty of access to medicines for lack of sufficient income to pay the full price of the
treatments (Pharmaceutical treatments.)
 The requirement to sign a payment commitment, which may result in an invoice for the
received medical assistance: Even in cases of care during pregnancy, childbirth and
postpartum, urgent care and attention to minors, which goes against the 16th/2012 decree.

In Spain, there is an observatory for the universal right to health. Information about this legal
observatory is specified in the Good Practices part (Annex 4).

2.6 The Netherlands

Healthcare isn’t free in the Netherlands, but citizens and lawful residents are obliged to obtain an
healthcare insurance, an "basisverzekering" and pay premiums. Government decides which care
must be in this insurance (basisverzekering). Non-residents are not allowed to have this social
insurance. If they have no other healthcare insurance and they need medical necessary care, they
have to pay for this care. If they can’t, then the health care provider is sometimes able to apply for
compensation by the government. Not all health care providers are able to apply for this
compensation. For example: only hospitals with a contract with CVZ can apply for compensation for
the costs of HIV care given to illegal aliens.

2.7 Serbia

Article 68 of the Constitution of the Republic of Serbia (Everyone has the right to protection of their
physical and mental health….) guarantees the right to health. Along with that, there is the human
rights protection framework within the European Convention for Human Rights and national Health
Protection Act and Patient’s Rights Act which include right to health and healthcare.

Healthcare services are financed through the National Healthcare Insurance Fund, which is the
compulsory state healthcare insurance.

Healthcare for migrants with irregular status is only covered in cases of medical emergencies and
lifesaving interventions. In these situations it is financed by the National Health Insurance Fund.

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There is no national legal entitlement to HIV treatment for migrants with irregular status. There have
been examples in practice that doctors on HIV clinics provide urgent care for undocumented patients
at their personal responsibility.

HIV testing is provided as anonymous service in general. Thus is available to all people regardless
whether they have documents or healthcare insurance. Other healthcare services are provided on
the basis of healthcare insurance and personal documents and thus unavailable to irregular migrants.

Legal services are available in theory, as several organizations like UNHCR, Belgrade Centre for
Human Rights and Asylum Protection Centre provide project-based free legal services to irregular
migrants. In practice these legal services could be difficult to reach, as these organizations are mostly
based in major cities.

2.8 Hungary

Hungary has a compulsory state health insurance system. To access free of charge health care
services one must have a valid national health insurance. Health insurance can be obtained either via
employment (insurance is partly automatically deducted you’re your salary and partly paid by your
employer) or via statuses such as being a pensioner or a student. Those that do not fall under either
category must pay for their insurance individually (around 20 euros/month). As a conclusion,
migrants with irregular status are not entitled to free health care services.

Certain health care services fall under the category “urgent need” defined by a ministerial act. In case
of these conditions or diseases health care is provided even if you do not have a health insurance.
Several diseases and conditions are listed under urgent need, including “Infectology
diseases/conditions that by themselves or as a result of their complications cause a life threatening
condition.”

In our interpretation, which is also in line with the interpretation of the National Infectology Faculty,
HIV/AIDS would fall under this definition but both the Ministry and the National Health Insurance
Funds argue that in case of HIV/AIDS “urgency” does not exist and as such HIV-care and antiretroviral
therapy are not considered as urgent lifesaving health services.

From the point of migration Hungary is a transit country. Most migrants enter Hungary via the border
with Serbia and 80-90% move on further to other target countries such as Germany, Austria or the
Scandinavian states. Based on data from the Hungarian Helsinki Committee, Hungary is the third
largest entry point (following Italy: 171 thousand and Greece: 51 thousand in 2014) for migrants to
the Schengen-zone. The number of migrants has increased significantly in the last couple of years.
The number of registered migrants increased from 2,187 to 18,900 in 2013 to 42,777 in 2014. In the
first 6 weeks of 2015 the Hungarian authorities have registered over 25 thousand migrants. Most
migrants arriving in Hungary ask for a refugee status, mainly from Afghanistan, Syria and Kosovo.
They are very rarely given refugee status (600 out of 43 thousand in 2014).

2.9 Greece

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The Greek report is based on the Dublin Declaration Report that Greece sent to ECDC/2014):

Migrants are considered a significant sub-population in the national response to HIV, the evidence
that show that, comes from the annual epidemiologic report that is published by the Hellenic Centre
for Diseases and Control. There, it’s clearly stated the sub-groups of “Immigrants”. It is not stated
clear enough how is developed the HIV prevalence among documented and undocumented
migrants.

There are 3 basic routes of transmission: sex between men, sex work and injecting drug use. This is
the result of the survey in the mobile units of the NGO PRAKSIS, where in a total of approx. 5500
tests, 25% were immigrants (and they have fulfilled the survey were possible routes of transmission
were indicated).

Migrants face mostly problems of communication with the hospitals and, in some cases of losing
their jobs and their health insurance status, they face problems in accessing health services in the
hospitals. They need to be accompanied in several cases by a social worker from an NGO or by a
volunteer in order to follow all necessary steps. Undocumented migrants in particular have no access
in ART and they are accepted in some cases either by the good will of the doctor or under
humanitarian status (if ART is not given for free in their country of origin).

Health Regulation No. GY/39A states that mandatory health examinations will be required, as well as
isolation and compulsory treatment, for diseases of public health importance, including HIV.
Migrants are recognized as one of the main groups to be tested by implementing this policy.

Every hospital has a roof top of drug spending. Special infection units function under this frame too.
It’s harder than before to treat people that they have no health insurance and undocumented
migrants certainly belong to this category. Additionally due to economic crisis and the big rates of
unemployment several documented migrants lose their job and are not covered by the national
insurance Organisms in case treatment is needed.

Targeted prevention programs for migrants are implemented only by NGOs funded by the E.U. grants
using leaflets and written articles for the local newspapers in 8 languages (for HIV and other
infectious diseases). Mobile units of NGOs offer free and anonymous testing for HIV and Hep. C in
collaboration to some communities of migrants in the centre of Athens, in Piraeus, in Thessaloniki
and in Patras. During the emergency measures of the ERF (European Refugee Fund) mobile units go
to the islands and the northern borders were undocumented migrants are concentrated in order to
provide information on HIV (and other STIs) ways of transmission, free and anonymous rapid testing.

There are no data available on the uptake of HIV testing among migrants, as such thing is not
implemented from the state from any category of population.

There is lack of prevention programs among migrants from the state. If migrants speak Greek or
English can access free testing in the hospitals or AIDS centre reports of KEELPNO, if not there is no
mediator to assist them. The only targeted prevention programs for migrants are addressed through
NGOs. The legal frame of the country is also problematic as during 2013 the MoH has re-established
the 39a decree that gives to the authorities the possibility for a mandatory testing among migrants,
drug users and sex workers. Greece doesn’t have a migration policy that assists people and address
their needs.

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Migrants are seen as a problem in case of entry from the borders (mostly undocumented ones) and
when they are arrested by the police or the coast guard they are settled massively in prisons were
health interventions are rare and only performed by NGOs. Second generation migrants are treated
in a slightly better way as they are used for economic reasons (cheap working hands) and they are
mostly kept as half legalized or almost legalized status. A new migration code is expected to be
implemented from June 2014 that hopefully will bring some improvement on the subject of the
status of the second generation of migration.

2.10 Poland

Poland has a strong migration influx from Ukraine. Furthermore, migration legislation is under reform
in Poland. For these two reasons, access to HIV services for people with no entitlement due to their
residency status is of big interest for AIDS organisations in the country.

3. Good practices

During this part of the meeting, legal observatories in France and Spain and the campaign of the NAT
to pave the way for access to HIV services for undocumented migrants were presented as good
practices. Please find the details of the presentations in Annex 2, 3 and 4.

4. Upcoming activities

The participants are introduced to the upcoming activities as they were outlined in the application
and structured by the three work package objectives and activities. Underneath each description you
find essences of the discussion and comments.

WP 1 Objective: Provide an overview of relevant EU laws and policies; monitor and review country-
level HIV-relevant legislation in key countries representing the epidemiological, political,
geographical and economic diversity of Europe; obtain case studies illustrative of the issues for each
of these countries.
Activities:
 Undertake desk research to produce providing overview of relevant EU laws and policies
 Further broaden and develop the pilot survey instrument to cover the most pressing HIV-
relevant laws and policies that currently impede universal access, and roll-out in up to ten
countries: Denmark, Germany, Greece, Hungary, Italy, Netherlands, Poland, Spain,
Switzerland, and the United Kingdom.
 Produce a survey report that includes an overview of EU laws and policies and case studies
illustrative of the issues for each of these countries.

Discussion and comments:

 A legal expert should be assigned to undertake the tasks outlined in this Work package.
Moreover, Nenad will contribute by presenting case studies in the court of Europe.
 The old survey form will not be used since there has research been done that makes a roll-
out to the other countries redundant. In fact, a survey should be developed that reflects the

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 different levels hampering the access to HIV services for people who are not entitled due to
their residence status.
 Case studies that are relevant for the EHLF out of the participating countries should be
contributed by the organisations.

WP 2 Objective: Establish sustainable processes and build capacity

Activities:
In order to both support the project on universal access to HIV-related healthcare, to build the
capacity of HIV NGOs to deal with legal issues, and to further establish and sustain the network, the
EHLF will also:
 Build a network of legal experts and NGO policy leads that can act and serve to support HIV
NGOs when the rights of people with HIV are violated.
 Create linkages with other pan-European organisations working on legal and/or policy issues
with healthcare workers, community based organisations, people with HIV, and/or policy-
and lawmakers.
 Further enrich the AAE Clearinghouse with a legal section that serves as a repository of
advocacy materials and best practices that links to the European Communications Platform.

Discussion and comments:

 A legal network of legal experts and NGO policy leads should be established resorted to
already made experiences (as for instance border net). Violation of rights of people living
with HIV should be brought from case level to broader level.
 It has to be specified which organisations should be contacted, linked up with and
collaborated with to which extent?
 Advocacy tools, the survey and other dissemination materials to be developed should be
uploaded to the new section of the Clearinghouse. Collaboration with the European
Communications Platform has to be determined.

WP 3 Objective: Produce and disseminate resources, best practice guidance and advocacy tools
Activities:
 Develop advocacy tools for NGOs in order to help advocate for universal access to HIV
prevention, treatment, care and support on a local/national level.
 Assist in the development of locally-relevant best practice guidance for healthcare workers
on how to ensure that they provide rights-based, stigma-free care to people with HIV
 Assist in the development of locally-relevant legal and rights literacy for people living with
HIV
 Highlight relevant issues with policy and decision makers throughout the European region by
using AAE's role as co-chair of the HIV/AIDS Civil Society Forum and its delegation to the EU
Think Tank on HIV/AIDS with the EU member states.

Discussion and comments:

 The medium for the advocacy tool for NGOs, whether a film, a manual or a training has still
to be decided upon.
 The good practice guidance should align with existing examples, for instance from the UK and
the Netherlands.

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  Development of locally-relevant legal and rights literacy should be directed to the key
population, migrants with irregular status.
 Concerns of the EHLF should be addressed in the CSF and the EU Think Tank. Moreover, the
work of the EHLF should be addressed in conferences.

The participants agree to work the next day in three working groups on log frames to sharpen the
objectives, activities, milestones and responsibilities of these three work packages.

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Tuesday, December 16, 2014

5. Planning and time framing of the project

After a short summary of the first day and an introduction into the working methods of the second
day the plenary splits into three working groups at three people.

The working groups are composed of Nenad (lead), Ronald and Ramón for WP 1, Ferenc (lead),
Francesca and Wojtek for WP 2 and Lella (lead), Sarah, Tanja and Marianella (who couldn’t
participate in the second day) for WP 3. After two hours of intensive work in working groups, the
results of the three working groups are presented to the plenary (see Annex 5 for work package 1,
Annex 6 for work package 2 and Annex 7 for work package 3). The discussion evolves around
feasibility of implementation, in particular in regard of work package 3. All participants agree to
follow up on working in the chosen working groups together with the Coordinator who will contact
the working group leads in the beginning of the year.

6. Final agreements

The participants will send their contributions to the minutes in terms of their description of
respective country situations until January 15, 2015.

The signed partnership agreements are handed over to the coordinator or are promised to be sent
before the holidays. The first instalment of the fees will be transferred as soon as the agreements are
signed by both parties.

The next meeting of the EHLF is planned for September 10 and 11, 2015

7. Evaluation of the meeting

All participants agree that this has been a successful and constructive meeting. With the working
plans the EHLF has the preconditions to produce effective outputs and results. The attendees express
their contentment to maintain their work in the EHLF.

16
Annex 1

17
18
Annex 2

Securing free ART for undocumented migrants in

England

INTRODUCTION

On1 October 2012 HIV treatment and care became accessible, free of charge, by undocumented
migrants living in England. This includes access to ART. HIV treatment and care are provided to all
people resident in England at the same quality standards as is enjoyed by UK citizens – regardless of
immigration status.

By undocumented migrants we mean people without current lawful residency status. In practice the
main groups included are:

 people who have overstayed after the expiry of their visa

 people who have had an asylum claim refused but remain in the UK, and
 people who have entered the country unlawfully.

This brief paper explains the history of charging migrants for HIV treatment and the arguments and
advocacy strategies used successfully to end such charges.1

BACKGROUND

The National Health Service (NHS)

In the UK the National Health Service (NHS) is a comprehensive health service providing free
diagnosis, treatment and care to all UK residents at the point of need. It is funded by taxation i.e it is
not an insurance-based or contributory system.

1
The paper focuses on the campaign to provide ART in England. Scotland, Wales and Northern Ireland apply their own
charging arrangements in relation to undocumented migrants. In 2014, Scotland officially changed the law to provide free
treatment, as is the case in England. In practice, Scotland, Wales and Northern Ireland have not charged undocumented
migrants with HIV for their HIV treatment, even before the change of law in England.
19
Charging for overseas visitors

It has for some time been possible in law for the NHS to charge a fee to people who access secondary
(i.e hospital) care who are not UK residents (known as 'overseas visitors') - for example tourists who
fall ill whilst in the UK short-term.

There have also always been exemptions - people who might not yet have lawful residency status but
who nevertheless can access free NHS care, including -

 People who have an asylum application currently being considered by the Home Office
 People accessing care in a hospital emergency department
 People accessing care in a sexual health clinic (but HIV treatment was excluded from this
exemption - i.e HIV treatment was still chargeable)
 People with one or more from a list of infectious diseases (again, HIV was not on the list
though for example TB and hepatitis were)

Until 2004 anyone who had been living in the UK for 12 months or more could also access free NHS
care. But as a result of a campaign in right-wing media against so-called 'health tourism' - claims that
people were migrating to the UK specifically to access NHS services - the Government changed the
regulations so that NHS care was free of charge after 12 months of 'lawful' residence. By adding the
word 'lawful' undocumented migrants were at a stroke denied access to free NHS care. Of course
the vast majority of such migrants cannot work lawfully and have no access to state benefits - so
most are destitute and quite unable to pay NHS fees.

Implementation of the new charging regime

From 2004 hospitals in England were expected to charge undocumented migrants with HIV for their
treatment and care. However, this change was not supported by the HIV clinical community and very
few doctors and nurses within HIV clinics made any proactive efforts to introduce charging systems -
indeed often the HIV clinic resisted attempts from other hospital staff to access clinic records and
identify people to charge. Nevertheless over time as the Government pressed further on the
implementation of charges it became increasingly difficult for HIV clinics to refuse access to hospital
'overseas payment managers' and charging became widespread. People with HIV would receive
hospital bills for thousands of pounds and often aggressive demands for payment, with private debt
collection agencies employed by a hospital to pursue the debt. The context of sympathetic HIV
clinics doing all they can to provide free HIV care is an important one though.

20
In addition, HIV charging did not mean usually that an undocumented migrant with HIV was denied
HIV treatment and ARVs. This was because the Government stated that where NHS treatment was
'immediately necessary', the treatment should always be provided without delay, even if there is no
evidence the migrant can pay the fee or indeed has outstanding debts. The migrant will simply
receive a further bill for payment. 'Immediately necessary treatment' is defined as treatment which
is life-saving or preventing a condition becoming life-threatening. Clearly all HIV clinicians would
consider HIV treatment to fall into this category.

One reason given by the Government for this 'immediately necessary treatment' provision was the
risk of a legal challenge under Article 3 of the European Convention on Human Rights if the
treatment was withheld - this of course may have implications for other European countries.

ARGUMENTS AGAINST CHARGES

The 'Myth of HIV Health Tourism'

One of the main arguments for charging was that free treatment was an incentive to people overseas
to travel to the UK to access NHS care - placing an unsustainable burden on our health system and
encouraging unwanted migration. Free treatment would also be a reason not to leave the UK once
one's right to remain here had ended.

NAT undertook research and produced a report in 2008 'The Myth of HIV Health Tourism' which
demonstrated that there was no evidence that free HIV treatment encouraged people to migrate to
the UK - http://www.nat.org.uk/media/Files/Publications/Oc-2008-The-Myth-of-HIV-Health-
Tourism.pdf . A key piece of data was provided by our Health Protection Agency, showing that on
average a migrant from Africa was diagnosed more than four years after entry to the UK, hardly
evidence of entry to access HIV treatment! The arguments of the report were never refuted and we
successfully secured retractions from some newspapers which continued to claim HIV health tourism
existed.

Deterrence from treatment

21
Whilst in theory access to HIV treatment was available because it was 'immediately necessary
treatment', the unpayable bills and threatening letters meant people absented themselves from HIV
treatment and care. We gathered case studies from both voluntary sector organisations and from
HIV clinics through the relevant networks. Of course such interruptions to treatment meant possible
drug resistance and the need to prescribe more expensive drugs (the cost for which would in practice
have to be borne by the NHS because the migrant was unable to pay the bill). It also meant increases
in viral load and thus increased infectiousness with the possible resulting public health cost. Two
cases were discovered of people with HIV/TB co-infection where the patient abandoned their TB
treatment early (despite the fact it was free) because of fears around the HIV-related bill - with the
risks of drug-resistant TB as a result.

Confusion about the charging system/Deterrence from testing

We gathered examples of NHS staff not understanding the rules and denying access to treatment to
those migrants who were in fact entitled to it, or of migrants entitled to HIV treatment not wanting
to get tested because they felt they would not be allowed to access treatment afterwards. The main
research programme around African prevention needs asked a question of respondents which
showed that a majority of them thought (incorrectly) it was possible that being HIV positive could
have an impact on their residency application - in other words, that the charging regime almost
inevitably fed in to a sense that it could disadvantage their immigration application to get tested for
HIV.

The Government had prioritised HIV support for the black African communities in England and this
included aims to reduce the high rates of late diagnosis as well as broader HIV prevention. A key
argument against HIV charges was that it was a disincentive to test - certainly for undocumented
migrants, but also for many other members of the African community who were confused on
entitlement to free NHS care or more broadly got a sense from Government rhetoric that they were
resented as possibly living with HIV.

Treatment as Prevention

This was perhaps the most important of all the arguments and when the RCT evidence of HPTN052
came out you could see the last remaining resistance from the Government crumbling. It should be
noted that amongst those on ART in the UK more than 90% have an undetectable viral load. We had
made the argument that treatment reduces infectiousness, and so denying treatment is public health
madness, as early as 2004, but of course as the evidence for treatment as prevention accrued and
deepened we were able to rely increasingly on this very simple public health message - that it was
contrary to the most basic public health principles, and to the Government's protective duty to its
citizens, not to treat an infectious disease so as effectively to end its infectiousness.
22
We had of course from the outset been making the related argument that it was perverse and
discriminatory to exempt every other infectious disease from NSH charges with the exception of HIV.

The costs of NHS charges

Perhaps the other most compelling argument against HIV charges was that such charges in fact
ended up costing the state more than had HIV care been free to all living here.

This cost argument had a number of elements:

 Charging undocumented migrants for HIV treatment was a process with its own costs in
bureaucracy, chasing up unpaid bills etc - but since almost all these migrants were destitute
no money was ever forthcoming - and the HIV treatment had nevertheless to be provided
because it is immediately necessary treatment. So we were paying for a charging system
which was unable to cover its own administrative costs.
 Charging deterred people from testing and thus from diagnosis and care - so instead of
people being diagnosed in good time they were only diagnosed when seriously ill, requiring
extremely costly intensive and/or inpatient care (we compared costs of a year of first line
therapy and a week in an intensive care bed), and probably more expensive care longer term
because of the harm done to them by very late diagnosis.
 Charging in deterring people from testing and thus from treatment also meant people did
not alter risky behaviour which they might do following diagnosis nor could they take
advantage of the preventive benefit of treatment. So there was the immense cost of further
HIV transmissions which could have been avoided had we a system which genuinely
encouraged people to test and access treatment. NAT had worked with the Health Protection
Agency to calculate the additional lifetime cost to the public purse of an additional HIV
transmission.

Human Rights

The right to health and right to life were cited in a number of our submissions (especially of course to
the Joint Committee on Human Rights), as well as relevant reports from UN Committees and the UN
Special Rapporteur on the Right to Health. This was of some value - especially in getting the UK
'human rights community' aware and on side on the issue - but it did not have as much force with the
Government as public health considerations.

23
Other countries

We gave examples of other European countries where treatment was made accessible to
undocumented migrants - the civil servants told us that the Minister was especially interested in such
precedents since it would show that England was not being excessively generous when compared
with other European countries.

CAMPAIGNING STRATEGIES

A united voice from the HIV sector, including HIV clinicians

From the introduction of charges the HIV sector was clear and united in opposing them. This was
true of course for the voluntary sector and community organisations. But also HIV doctors expressed
their concerns around the charging regime, presenting submissions to relevant government
consultations etc. The voice of the HIV doctors' association, BHIVA (the British HIV Association) was a
very important and authoritative voice arguing against charges. The HIV section of the state
epidemiological service, the Health Protection Agency, whilst obviously constrained as to what it
could state publicly, was also concerned about the public health implications of HIV charges and in
two reports on Migrant Health emphasised the importance of effective testing and entry into care.

When key government consultations or parliamentary inquiries took place we were able to mobilise
a large number of organisations to submit evidence - NAT runs a network of nearly all HIV voluntary
sector organisations in the UK (about 130 members) and has close relations with clinical bodies.

A wider alliance against NHS charges

We were a founder member of a coalition of voluntary sector and professional organisations aiming
to challenge charging for NHS care (known as 'the entitlement group'). Other members included
refugee organisations, THT, The British Medical Association, Doctors of the World, Migration Rights
Network etc. This meant of course the broader cases against charges enjoyed wider evidence and
support - it also meant a wider group could be called upon to make the specific case against HIV
charges when needed (and would use HIV as an example of the wrong-headedness of charging in
their more generic resources).

24
Ongoing research and case study collection

The 'Myth of HIV Health Tourism' was an effective example of research to counteract false claims
around health and migration and make the case for an end to charges. We also over the years
regularly collected case studies from voluntary sector organisations of the problems charging
produced (we run a network of more or less all HIV voluntary sector organisations in the UK form
which we can call for such examples).

Using government and parliamentary consultations/inquiries

Early on after charges were introduced, we successfully suggested to our parliamentary Health
Committee to conduct an inquiry into the current national response to HIV - this was used as an
occasion for the whole HIV sector to make the case against charges. The Health Committee
recommended that charges be ended. Another key parliamentary inquiry a few years later by the
Joint Committee on Human Rights on asylum seekers also heard evidence on the issue (from NAT and
others) and again recommended an end to HIV charges and a full-scale review of the overall NHS
charging regime. In 2011 the House of Lords Select Committee on HIV in the UK was established and
undertook a high profile inquiry where again evidence was submitted from a wide range of bodies
calling for an end to HIV charges - the report of the Committee recommended accordingly.

All public consultations on government policy relating to either migration or HIV were used as
appropriate and relevant to make the case against charges. Parliamentarians were briefed for all
relevant parliamentary debates also to argue against charges.

Securing smaller improvements to the charging regime whilst campaigning for an end to HIV
charges altogether

Whilst charges remained in place there were ways we could argue to mitigate their harm. The
Government agreed that if you had begun HIV treatment free of charge because you had a 'live'
asylum claim, you could continue on that treatment free of charge even if your asylum claim later
failed (this was known as 'the easement clause').

We secured clarification that free treatment was available not just to those whose claim for asylum
was under the Refugee Convention but also to those whose claim to remain was under Art 3 of the
European Convention on Human Rights.
25
Refused asylum seekers sometimes are unable to return to their country of origin because the
journey is too risky, the country refuses to receive them back, or for other reasons the Government
agrees are legitimate. In these cases they can continue to receive some state support until they able
to return (section 4 or section 95 support) but they were not entitled to free NHS care. We
campaigned with others to extend free treatment to this group since they are in any event receiving
government support and have nowhere else to go. The Government in the end accepted this
argument and free NHS care was extended to this group.

We also successfully campaigned in 2004 against the extension of charges to primary care.

Challenging inaccurate media coverage

We always wrote letters for publication aiming to correct inaccuracies around HIV and migration.
We used the press complaints procedure to force printed retractions from newspapers which
claimed wrongly that there was evidence of HIV health tourism.

Legislative interventions

The charging for HIV treatment was set out in law (Regulations made by the Secretary of State,
known as 'secondary legislation') so an end to charges would require amendment to the law. We
used legislation going through Parliament as the opportunity to try to change the law by working
with sympathetic parliamentarians to move amendments to relevant bills. In 2010 an amendment to
end HIV charges was tabled during the passage of the Health Bill - it was not put to a vote - the
parliamentarian withdrew the amendment but only after the Minister agreed to a specific review by
the Department of Health of the case for ending charges for HIV treatment.

The internal departmental review took some time - both NAT and BHIVA, as well as BASHH, THT and
AHPN, were invited to submit evidence and arguments as outlined above. The delay in finalising the
review conclusions was partly a result of a change of Government half-way through the process.

A new legislative opportunity to amend the law was the Health and Social Care Bill in 2012 - we
worked with Lord Norman Fowler who had been the Secretary of State for Health under Mrs
Thatcher at the beginning of the HIV epidemic. It was difficult for the Government to oppose an
Amendment coming from someone in their own party - moreover a former Cabinet Minister of
distinction who had been responsible for the UK's effective and ethical initial response to HIV. The
26
Government accepted the arguments put forward for change and committed to introduce new
Regulations exempting HIV from charges - which they did in June 2012, the new rules coming into
force in October 2012.

The Government explanation for the change in policy emphasised treatment as prevention and the
public health case for free treatment for all. They also made clear that an HIV clinic would be able to
refuse free treatment to someone who was not living here but actually a tourist/passing through.
There was surprisingly muted/little negative reaction even in the right-wing press. It seemed that
without our noticing it seven years of arguing relentlessly against charges on the basis of evidence
had quietly changed lots of people's minds.

Of course NHS charges remain in place for other elements in hospital care and the Government
seems interested in extending charges to primary care. Even if HIV treatment itself is free, if an
undocumented migrant cannot access other vitally important elements of healthcare then the HIV
treatment and its impact may be fundamentally compromised. So we continue to work with others
to resist any extension of charges and to see an end to all current NHS charges for undocumented
migrants.

POSTSCRIPT: FURTHER UPDATES SINCE 2012

NAT has been campaigning for Scotland, Wales and Northern Ireland to legislate for universal free
access to ART on the same basis as it is provided in England. In May 2014, Scotland introduced this
entitlement in Regulations. The Northern Irish Assembly has also indicated that it will do the same in
late 2014 or early 2015.

The Immigration Act 2014 has introduced a further range of changes to NHS entitlement for
migrants, but this does affect entitlement to ART. However, NAT is concerned by proposals to
extend the NHS charging regime in England beyond hospitals to primary care setting, which could
pose a barrier to HIV testing. Along with other NGO partners we have successfully campaigned for
entitlement to free GP or primary care nurse consultations, but the Government is still considering
charges for other primary care services.

NAT

December 2014

27
Annex 3

28
29
Annex 4

30
31
32
Annex 5 – Work Package 1

Activities Specific objectives Who is in charge Milestones Time frame

Undertake desk research to produce 1.To develop ToR 1. AAE office/EHLF 1. ToR available- 15th 15th April
providing overview of relevant EU laws Working group January
and policies and relevant case law 2. To contract legal 2. Contract signed 15th
expert 2. AAE office February
3. To conduct draft 3. Draft prepared -1st April
of the research 3. Legal Expert 4. Final report prepared -
4. Final desk 15th April
research report 4. Legal Expert

Further broaden and develop the pilot 1. To develop a 1.EHLF Working 1. List of criteria – 31st 15th June
survey instrument to cover the most questioner group January
pressing HIV-relevant laws and policies regarding access to
that currently impede universal access, HIV services and
and roll-out in up to ten countries: treatment
France, Germany, Greece, Hungary,
Italy, Netherlands, Poland, Serbia, 2.To collect 2.AAE office 2. 15th March
Spain, and the United Kingdom. information from
the countries

3.To prepare a 3.AAE office 3. 15th April

country reports

Produce a survey report that includes 1. Drafting the 1. Legal expert 1. 31st May 30th
an overview of EU laws and policies and report September
case studies illustrative of the issues for
each of these countries. 2. Review of the 2. EHLF working 2. 15th June
draft group

3. Production of 3. Legal expert 3. 30th September

the final report

34
Annex 6 – Work Package 2

Activities Specific objectives Who is in charge Milestones Time frame

Build a network of legal experts and 1: mapping of country 1. Q2 30th
NGO policy leads that can act and situation 1. policy focal November
serve to support HIV NGOs when the points
2: develop tool to the 2. Q1
rights of people with HIV are violated.
mapping exercise 2. Francesca

3: identifying legal 3. Q1-2

experts/services/NGOs 3. policy focal
(human rights) in 10 points
countries

4: adding other
4. Q3
services/focal points
4. policy focal
etc. that are relevant
points
to country situation
Create linkages with other pan- 1: mapping of pan- 31st December
European organisations working on European NGOs coordination by 1:
legal and/or policy issues with AAE office
healthcare workers, community based 2: identifying
activities/focus to 2:
organisations, people with HIV, and/or
policy- and lawmakers. avoid duplication

3: build partnership by
a) presenting outcome 3: after 2015 continuous
of WP1 to NGOs

b) collecting good
practices/advocacy
materials from NGOs

35
Further enrich the AAE Clearinghouse 1. put legal section on AAE Office 1: 31st December 31st December
with a legal section that serves as a AAE Clearinghouse
repository of advocacy materials and
2: include material 2: 31st December -
best practices that links to the
from WPs continuous
European Communications Platform.

36
Annex 7 – Work Package 3

Objective: Produce and disseminate resources, best practice guidance and advocacy tools

Activities:

 Develop advocacy tools for NGOs in order to help advocate for universal access to HIV prevention, treatment, care and support on a local/national
level.

 Share existing locally-relevant best practice guidance for healthcare workers on how to ensure that they provide rights-based, stigma-free care to
migrant and asylum-seeking people with HIV (NB: Stigma is very locally specific, so can only share methods for developing and implementing
guidance, NOT content)

 Share existing development of locally-relevant legal and rights literacy for people living with HIV.

 Highlight relevant issues with policy and decision makers throughout the European region by using AAE's role as co-chair of the HIV/AIDS Civil Society
Forum and its delegation to the EU Think Tank on HIV/AIDS with the EU member states

Sub objective Sub-activities Who Milestones Deadline

1. Develop 1.1 Create toolkit (written manual, case- -EHLF members 1.1.1 Identifying/curating 1.1.1 March 2015
advocacy tools study based, printed on online) with (working group to be good practice examples
for NGOs – good sections on identified) to include in the toolkit 1.1.2 June 2015
practice in - data collection/observatory (Spain
advocating for and France) -Case studies to be 1.1.2 Collecting good 1.1.3 July 2015
universal ART - costings (treatment vs non- contributed by EHLF practice examples from
access. Aiming treatment) (England) members and others members 1.1.4 June-October 2015
towards legal - Parliamentary/legislative identified by members
change (not strategies (England) 1.1.3 Decide format for 1.1.5 November 2015
implementation - Media strategies (England, Spain - Drafting led by Office toolkit (e.g. online or
of existing laws) (video as well as Ramon’s work)) with input from printed) and how many 1.1.6 December 2015
- Public health arguments (England) working group 3 languages are needed (English version, may
- Human Rights (Germany) (thinking about which take longer to publish
- Coalition-building and countries have greatest translated versions, if

37
 collaboration (Spain, England, use for good practice agreed)
CSF) examples) – budget for
- Engaging the medical profession these
and using doctors as
spokespeople (Germany, Spain, 1.1.4 Compile/draft
England) toolkit
PLUS OTHERS TO BE IDENTIFIED
WITHIN EHLF AND OUR NETWORKS 1.1.5 Design

1.1.6 Publish

2. Highlight issues 2.1 CSF meetings - Lella 2.1 presentation 2.1/2.2 June 2015 and
with decision- 2.2 Think tank meetings - Tamas December 2015
makers through 2.3 EHLF to agree on topics to be - Other CSF 2.2. presentation
CSF etc presented prior to meetings members in 2.3 May 2015 and
2.4 Engage with other relevant DGs (not EHLF 2.3 agree points via email November 2015
normally at meetings) - Other EHLF
(briefing prior 2.4 Invite to meetings OR 2.4 April 2015 and
to meeting) arrange other meeting October 2015 (and/or)
3. Assist in 3.1. Collating examples from EHLF members - EHLF 3.1 Finding examples 3.1 April 2015
development of and other NGOs known to AAE (Germany, members with 3.2 Uploading 3.2. Depending on when
locally-relevant Netherlands, England, Italy, France...) examples examples GNP+ platform goes live
legal and rights - Office to (December 2015 at
literacy for 3.2. Making these available on key online oversee latest)
people living platforms (e.g. AAE clearinghouse and GNP+ uploading
with HIV platform) process

4. Assist in the 3.1. Collating examples from EHLF members - EHLF 4.1 Finding examples 4.1 August 2015
development of and other NGOs known to AAE (Germany, members with 4.2 Uploading 4.2 Depending on when
locally-relevant Netherlands, UK, Spain...) examples examples GNP+ platform goes live
best practice - Office to (December 2015 at
guidance for 3.2. Making these available on key online oversee latest)

38
healthcare platforms (e.g. AAE clearinghouse and GNP+ uploading
workers on how platform) process
to ensure that
they provide
rights-based,
stigma-free care
to people with
HIV (this is a
major project in
itself, so sub-
objectives are
limited to sharing
practice from
EHLF members
and others in
their networks.)

39
Annex 3 – EHLF legal survey questionnaire

AIDS Action Europe questionnaire on access to health and HIV services for migrants with
irregular status

1. Please indicate the following:

a. Your name

b. Your country of residence*

c. The name of the organization you represent

2. Does your country of residence have a constitution or other legal document that guarantees the
right to health? (please specify if so)
a. Yes
x
b. No
v
Please specify

3. What is
a. the estimated number of migrants with irregular status in your country (please indicate the source of your
information)?

b. the estimated number of migrants with irregular status in your country living with HIV (please indicate the
source of your information)?

4. How would you define your country´s health care system? (tick all that apply)

 There is universal access (equal access for all)

 There is universal access for nationals, residents and regular migrants

 Insurance based system with compulsory state insurance

 Insurance based system with state and private insurance

 Insurance based system with different levels of insurance and access

 Other, please specify

40
5. How is healthcare financed (please list all relevant information regarding the nature of financing: state
or private, via direct taxing, via mandatory contribution/optional contribution, possibility for insurance of
dependants etc.)
a. For nationals/citizens?

b. For non-nationals who are lawfully resident?

c. For migrants with irregular status (if at all)?

6. Which of the following applies with respect to nationals / citizens and lawfully resident non-
nationals in your country? (please indicate as many as apply)

 There is free HIV testing

 There is free HIV diagnosis (test + confirmatory test)

 There is free HIV treatment and care

 There is free STI (other than HIV) testing

 There is free STI (other than HIV) treatment and care

 There is free treatment and care for other communicable diseases (TB, viral hepatitis etc.)

 There is free treatment and care for acute medical conditions in hospital

 There is free treatment and care for chronic medical conditions (other than HIV infection) in hospital

 There is free treatment and care for medical emergencies

 There is free treatment and care in primary care

7. Does the national law in your country provide any of the following for migrants with irregular
status FREE OF CHARGE (please indicate as many as apply)

 HIV testing

 HIV diagnosis (test + confirmatory test)

 HIV treatment and care

 STI (other than HIV) testing

 STI (other than HIV) treatment and care

 Treatment and care for other communicable diseases (TB, viral hepatitis etc.)

 Treatment and care for acute medical conditions

 Treatment and care for chronic medical conditions (other than HIV infection)

 Treatment and care for medical emergencies

 Treatment and care in primary care

41
8. If there is no national legal entitlement to HIV treatment for migrants with irregular status, is there
nevertheless access in practice as a consequence of international human rights obligations or
otherwise? (Please explain, with examples if possible).

a. Yes

b. No

Please explain, with examples if possible

9. Please specify any other differences in accessing HIV testing and/or treatment between nationals
and irregular migrants.

10. Is there any difference in law and / or practice on availability of HIV healthcare between adults
and children who are migrants with irregular status? (Please explain, with examples if possible).

a. Yes

b. No

Please explain with examples

11. Is there any difference in law and/or practice on availability of HIV healthcare for migrants with
irregular status among regions within your country?

a. Yes

b. No

Please explain with examples

42
12. Are any of the following available to migrants with irregular status in your country FREE OF
CHARGE?
a. Legal services

b. Mental health services

c. Education

13. Is there any further information that you find crucial to share for getting a better picture of access
and/or legal conditions in your country regarding regulations (from laws to guidelines), practice,
the insurance system etc.? Do you have any comments to the questions above? If yes, please
specify:

43
Annex 4 – EHLF advocacy tool and collection of good practice materials

44
 The European HIV Legal Forum - Access to health care services for migrants with irregular status

COUNTRY/ACCESS FR DE ES* UK GR HU IT* SR NL PL

RIGHT TO HEALTH
+ + + + + + + + + +
UNIVERSAL ACCESS
TO HEALTH CARE
- - - - - - - - - -
HIV TEST
+ + + + + + + + + +
HIV DIAGNOSIS
+ + + + + - + - + +
HIV TREATMENT
+ - + + + - + - +* -
STI TEST
+ -* + + - -* + - + +
STI TREATMENT
+ - + + - - - - - +
COMM. DISEASES
+ +/- + +/- +/- - +* - - +/-
EMERGENCY
+ + + + + + + + + +
ACUTE
+ - + - - - + - - -
CHRONIC
+ - + - - - +* - - -
PRIMARY CARE
+ - + + - - + - - -

45
Notes to the table:

 Spain and Italy have regional health systems

 HIV treatment in the Netherlands: the doctors prescribing treatment and care for migrants with irregular status can reimburse their costs
up to 80% through the national insurance system
 STI tests: in Germany and Hungary free and anonymous STI testing is provided only for certain key populations by civil society
organizations
 Communicable diseases: +/- means that the countries provide treatment for migrants with irregular status only for certain diseases that
are considered to be a public health threat. E.g. TB is covered, hepatitis C is not.
In Italy there is a regional difference in this field of health services, some regions provide hepatitis C treatment too.
 Chronic diseases: Italy has regional differences in providing treatment and care for chronic diseases for migrants with irregular status.

46
The links below lead to online resources of national, regional and international good practice
materials in the field of treatment and right literacy for people living with HIV:

United Kingdom:

Website containing useful information for PLHIV: http://mycaremyvoice.org.uk/

Serbia:

Overview and analysis of HIV legislation in Serbia:

http://www.aidsactioneurope.org/en/publication/hivaids-legislation-republic-serbia (English and
Serbo-Croatian)

Poland:

Website containing information relevant to migrants: http://www.migrant.info.pl/ (multilingual)

Italy:

Video tutorial on the topics of rights of migrants on HIV and access to health services for
testing and treatment, HIV prevention and transmission, testing for HIV and living with HIV:
http://www.lilamilano.it/it/campagne/81-video-hiv-per-migranti-in-italia (multilingual)

Spain:

“ODUSALUD” is an online network of 72 organizations in Spain. They report and record cases
of refusal of health care services for migrants with irregular status, raise awareness and
provide trainings, do advocacy and media work, and run a legal advisory group:
http://odusalud.blogspot.de/

Germany:

HIV prevention guide for migrants: http://www.aidshilfe.de/de/shop/hiv-praevention-fuer-

mit-migrantinnen (German)

“AfroLebenVoice – Our voices against discrimination” – photovoice publication of HIV+

migrants and their stories: http://www.aidshilfe.de/de/shop/afrolebenvoice-unsere-
stimmen-gegen-diskriminierung-englisch (German and English)

International:

UNDP publication: handbook on rights literacy for PLHIV:

http://www.eurasia.undp.org/content/rbec/en/home/library/hiv_aids/know-your-rights--use-your-
laws.html (English and Russian)

47
Annex 5 – Legal research and report

Legal survey report on laws, policies and European case law of the issues
in the field of access to HIV prevention, testing, treatment, care and
support for people with no entitlement to HIV services due to their
current residence status in Europe in the following countries:

France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Serbia, Spain, the
United Kingdom
Ten-country comparison

48
Index

Methodological premise p.3

1) Introduction p.3
2) List of the main International laws dealing with the right to
Healthcare p.5

3) The main EU laws on right to healthcare p.10

4) Single country profiles: p.15
France p.15
Germany p.23
Greece p.30
Hungary p.33
Italy p.36
The Netherlands p.41
Poland p.46
Serbia p.49
Spain p.51
United Kingdom p.56

5) European case law p.63

6) Conclusions p.71

7) Author and contributors p.76

8) Bibliography p.77

49
 Salus ante omnia

(Health first of all)

(Ancient Latin proverb)

Methodological premise

“Migrants with irregular status” is the term used herein to define third-country
nationals without a required permit authorizing them to regularly stay in the surveyed
country.

The present study does not specifically take into account asylum seekers and refugees,
EU citizens or other specific groups of migrants (such as pregnant women or children)
– which represent a lower percentage of the impressive migratory phenomenon
presently involving Europe

This work does not specifically consider any eventual different laws and rules in force
in various regions within the same country.

1) Introduction:

This work was produced as part of the AIDS Action Europe project “European HIV Legal
Forum” (EHLF), which started in 2012. Its aim is mainly to give an updated picture of
access to testing, treatment, care (and support) for people with no entitlement to HIV
50
services due to their current legal residence status in the following 10 countries:
France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Serbia, Spain and
United Kingdom.

The ten countries under investigation – all EU countries except for Serbia - were
chosen on the basis of their representativeness. They were considered ‘key countries’
that represent the epidemiological, political, geographical and economic diversity of
Europe.

This analysis also includes an overview of the existing laws, policies and European law
cases, relevant for each of these countries in order to evaluate effective availability of
treatment and care for to people with HIV, regardless of their status.

The persistence of poverty in many countries, associated to demographic rise,

indicates that the phenomenon is and will constantly increase regardless of
unpredictable factors related to conflicts and /or environmental conditions.

It has thus become increasingly urgent to improve access to healthcare, a task which
clearly cannot be delegated to NGOs or to civil society.

Indeed, “The range of international texts that ensure people’s basic and universal right
to healthcare is impressive. They include binding State commitments under UN,
Council of Europe and EU agreements and an even greater body of ‘soft’
recommendations issued by their respective institutions and agencies. However
(editor’s note) in practice, these texts often remain just words rather than effective
guarantees for universally accessible healthcare system.”2

All such international instruments refer to the universal right to healthcare, regardless
of one’s status, but de facto people without documents have serious difficulties in
accessing the healthcare system.
2
MdM International network, Legal report on access to healthcare in 12 countries, 8th June 2015.
51
Therefore if, on the one hand, it is important to identify, in each of the countries object
of the present investigation, the main barriers which prevent access to healthcare
(restrictive national (or regional) regulations, financial difficulties to pay for medical
care, bureaucratic and administrative obstacles, etc.), on the other hand some
procedures should be outlined as good examples to improve and extend access to HIV
healthcare regardless of one’s legal status.

Denying treatment to migrants with irregular status only contributes to perpetuate HIV
transmission and to undermine efforts toward controlling the HIV/AIDS epidemic;
besides, interruptions in HIV treatment can lead to illness, development of drug
resistance and death3.

2) Main international regulations in favour of the right to healthcare

The right to health care is anchored in the international human rights treaties:
-Art. 25 of the Universal Declaration of Human Rights (UDHR), General Assembly of the
United Nations, 10th December 19484;
-Art. 12 of the International Covenant on Economic, Social and Cultural Right (ICESCR),
General Assembly of the United Nations, 16th December 19665;

3
Discrimination, Denial, and Deportation, Human Rights Abuses Affecting Migrants Living with HIV, Human Rights Watch,
2009.

4
Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same social protection.

5
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for:
52
Moreover, there are some specific regulations which deal with the elimination of
discrimination such as, among others:
-Art. 5 of the International Convention on the Elimination of All Forms of Racial
Discriminations (ICERD), General Assembly of the United Nations, 21th December
19656;
-Art. 10 and 12 of the I.L.O. Convention n. 143 Concerning Migrations in Abusive
Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant
Workers, 24th June 19757;

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development
of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of
sickness.
The content of this article has been clarified by the UN Committee on Economic, Social and Cultural Rights
(CESCR) in his General Comment n. 14: “ States are under the obligation to respect the right to health by, inter
alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees,
minorities, asylum seekers and illegal migrants, to preventive, curative and palliative health services; abstaining
from enforcing discriminatory practices as a State policy…”.
6
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties
undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in
the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted
by government officials or by any individual group or institution;
(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis
of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any
level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one's own, and to return to one's country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favorable conditions of work, to protection
against unemployment, to equal pay for equal work, to just and favorable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants,
cafes, theatres and parks.
53
-Art. 11 and 12 of the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW), General Assembly of the United Nations, 18th December
19798;

7
Article 10 Each Member for which the Convention is in force undertakes to declare and pursue a
national policy designed to promote and to guarantee, by methods appropriate to national
conditions and practice, equality of opportunity and treatment in respect of employment and
occupation, of social security, of trade union and cultural rights and of individual and collective
freedoms for persons who as migrant workers or as members of their families are lawfully within its
territory.

Article 12 Each Member shall, by methods appropriate to national conditions and practice--

 (a) seek the co-operation of employers' and workers' organizations and other appropriate
bodies in promoting the acceptance and observance of the policy provided for in Article 10 of
this Convention;
 (b) enact such legislation and promote such educational programs as may be calculated to
secure the acceptance and observance of the policy;
 (c) take measures, encourage educational programs and develop other activities aimed at
acquainting migrant workers as fully as possible with the policy, with their rights and obligations
and with activities designed to give effective assistance to migrant workers in the exercise of
their rights and for their protection;
 (d) repeal any statutory provisions and modify any administrative instructions or practices
which are inconsistent with the policy;
 (e) in consultation with representative organizations of employers and workers, formulate and
apply a social policy appropriate to national conditions and practice which enables migrant
workers and their families to share in advantages enjoyed by its nationals while taking account,
without adversely affecting the principle of equality of opportunity and treatment, of such
special needs as they may have until they are adapted to the society of the country of
employment;
 (f) take all steps to assist and encourage the efforts of migrant workers and their families to
preserve their national and ethnic identity and their cultural ties with their country of origin,
including the possibility for children to be given some knowledge of their mother tongue;
 (g) guarantee equality of treatment, with regard to working conditions, for all migrant workers
who perform the same activity whatever might be the particular conditions of their
employment.

8
Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the
field of employment in order to ensure, on a basis of equality of men and women, the same rights, in
particular:

(a) The right to work as an inalienable right of all human beings;

54
(b) The right to the same employment opportunities, including the application of the same criteria
for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all
benefits and conditions of service and the right to receive vocational training and retraining,
including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of
equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity
and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of
the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to
ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of
maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former
employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to
combine family obligations with work responsibilities and participation in public life, in particular
through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful
to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the
light of scientific and technological knowledge and shall be revised, repealed or extended as
necessary.

Article 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the
field of health care in order to ensure, on a basis of equality of men and women, access to health
care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women
appropriate services in connection with pregnancy, confinement and the post-natal period, granting
free services where necessary, as well as adequate nutrition during pregnancy and lactation.

55
- Art. 24 of the Convention on the Rights of the Child (CRC), General Assembly of the
United Nations, 20th November 19899;
-Art. 25 of the Convention on the Rights of Persons with Disabilities (CRPD), General
Assembly of the United Nations, 13th December 200610;

9
Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard
of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall
strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take
appropriate

measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with
emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care,
through, inter alia, the application of readily available technology and through the provision of
adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks
of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have
access to education and are supported in the use of basic knowledge of child health and nutrition,
the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of
accidents;

(f) To develop preventive health care, guidance for parents and family planning education and
services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing
traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to
achieving progressively the full realization of the right recognized in the present article. In this
regard, particular account shall be taken of the needs of developing countries.

10
Article 25 - Health

States Parties recognize that persons with disabilities have the right to the enjoyment of the highest
attainable standard of health without discrimination on the basis of disability. States Parties shall
56
 -Principles 17 and 18 of The Yogyakarta Principles on the Applications of Human Rights
Law in Relation to Sexual Orientation and Gender Identity, International Service of
Human Rights, 26th March 200711.

take all appropriate measures to ensure access for persons with disabilities to health services that
are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall:

a. Provide persons with disabilities with the same range, quality and standard of free or
affordable health care and programs as provided to other persons, including in the area of
sexual and reproductive health and population-based public health programs;
b. Provide those health services needed by persons with disabilities specifically because of their
disabilities, including early identification and intervention as appropriate, and services
designed to minimize and prevent further disabilities, including among children and older
persons;
c. Provide these health services as close as possible to people’s own communities, including in
rural areas;
d. Require health professionals to provide care of the same quality to persons with disabilities
as to others, including on the basis of free and informed consent by, inter alia, raising
awareness of the human rights, dignity, autonomy and needs of persons with disabilities
through training and the promulgation of ethical standards for public and private health care;
e. Prohibit discrimination against persons with disabilities in the provision of health insurance,
and life insurance where such insurance is permitted by national law, which shall be provided
in a fair and reasonable manner;
f. Prevent discriminatory denial of health care or health services or food and fluids on the basis
of disability.

11
PRINCIPLE 17. THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH

Everyone has the right to the highest attainable standard of physical and mental health, without
discrimination on the basis of sexual orientation or gender identity. Sexual and reproductive health is
a fundamental aspect of this right.

States shall:

a) Take all necessary legislative, administrative and other measures to ensure enjoyment of the right to
the highest attainable standard of health, without discrimination on the basis of sexual orientation or
gender identity;

b) Take all necessary legislative, administrative and other measures to ensure that all persons have
access to healthcare facilities, goods and services, including in relation to sexual and reproductive
health, and to their own medical records, without discrimination on the basis of sexual orientation or
gender identity;

c) Ensure that healthcare facilities, goods and services are designed to improve the health status of,
and respond to the needs of, all persons without discrimination on the basis of, and taking into
57
 account, sexual orientation and gender identity, and that medical records in this respect are treated
with confidentiality;

d) Develop and implement programs to address discrimination, prejudice and other social factors
which undermine the health of persons because of their sexual orientation or gender identity;

e) Ensure that all persons are informed and empowered to make their own decisions regarding medical
treatment and care, on the basis of genuinely informed consent, without discrimination on the basis
of sexual orientation or gender identity;

f) Ensure that all sexual and reproductive health, education, prevention, care and treatment programs
and services respect the diversity of sexual orientations and gender identities, and are equally
available to all without discrimination;

g) Facilitate access by those seeking body modifications related to gender reassignment to competent,
non-discriminatory treatment, care and support;

h) Ensure that all health service providers treat clients and their partners without discrimination on the
basis of sexual orientation or gender identity, including with regard to recognition as next of kin;

i) Adopt the policies, and programs of education and training, necessary to enable persons working in
the healthcare sector to deliver the highest attainable standard of healthcare to all persons, with full
respect for each person's sexual orientation and gender identity.

PRINCIPLE 18. PROTECTION FROM MEDICAL ABUSES

No person may be forced to undergo any form of medical or psychological treatment, procedure,
testing, or be confined to a medical facility, based on sexual orientation or gender identity.
Notwithstanding any classifications to the contrary, a person's sexual orientation and gender
identity are not, in and of themselves, medical conditions and are not to be treated, cured or
suppressed.

States shall:

a) Take all necessary legislative, administrative and other measures to ensure full protection against
harmful medical practices based on sexual orientation or gender identity, including on the basis of
stereotypes, whether derived from culture or otherwise, regarding conduct, physical appearance or
perceived gender norms;

b) Take all necessary legislative, administrative and other measures to ensure that no child’s body is
irreversibly altered by medical procedures in an attempt to impose a gender identity without the full,
free and informed consent of the child in accordance with the age and maturity of the child and
guided by the principle that in all actions concerning children, the best interests of the child shall be a
primary consideration;

58
 The above regulations consider the right to healthcare as an absolute value belonging
by definition to the natural heritage of the individual, a fundamental human right
disengaged from any nationality or citizenship.

3) The main EU laws on right to healthcare

In addition to international laws and conventions, at the European level, one cannot
ignore:

a) The Charter of Fundamental Rights of The European Union (EU Charter),

b) the Treaty on the Functioning of The European Union (TFEU) ,

c) the European Social Charter (revised) (ESC(r)) and d) the European Convention
on Human Rights (ECHR).

*a) The EU Charter is an internal set of rules that is legally binding in the EU. This
means that all the institutions and bodies of the EU must ensure that they do not
violate the rights contained in the Charter when they take action, such as when
creating EU law and policy.

c) Establish child protection mechanisms whereby no child is at risk of, or subjected to, medical abuse;

d) Ensure protection of persons of diverse sexual orientations and gender identities against unethical
or involuntary medical procedures or research, including in relation to vaccines, treatments or
microbicides for HIV/AIDS or other diseases;

e) Review and amend any health funding provisions or programs, including those of a development-
assistance nature, which may promote, facilitate or in any other way render possible such abuses;

f) Ensure that any medical or psychological treatment or counselling does not, explicitly or implicitly,
treat sexual orientation and gender identity as medical conditions to be treated, cured or
suppressed.

59
The Charter comes into play at two stages: when EU legislation and policies are being
negotiated, and when these laws and policies are being implemented by the EU or the
Member States.

After legislation or policies have been adopted, the Charter can be used by the Court
of Justice of the EU (CJEU).

The Charter can still be used at national level: when local and national authorities, and
also national Courts, implement EU legislation, they must ensure that they do so in
respect of the Charter.

The Charter can be used to influence the negotiating process, to ensure that any law
and policy created is in line with human rights standards. It can also be used during
litigation to complain that a law or policy that has already been created, or the way
that this is implemented by the EU or a Member State, breaches human rights
standards12.

The right to healthcare is included in Article 35 of the Charter of Fundamental Rights of

The European Union (2000/C 364/01)13. The Charter does not limit itself to confirm the
right to health prevention and medical treatment, but it also outlines the guarantee of
access to a high level of human health protection as an integral part of all the policies
and actions of the EU.

12
I. Butler, Background paper, Open society European Policy Institute, February 2013.
13
Article 35

Health care

Everyone has the right of access to preventive health care and the right to benefit from medical
treatment under the conditions established by national laws and practices.

A high level of human health protection shall be ensured in the definition and implementation of all
Union policies and activities.

60
The Court of Justice had the opportunity to declare the legitimacy of restrictions
applicable to other liberties ensured by the Charter itself in the very name of the
prevalent need to protect human health (CJEU September 6 th 2012, case C-544d/10
Deutsches Weintor and G.) 14

The application of the Charter is limited to those matters that fall within the scope of
EU law.

Although it does not make any distinction on the ground of nationality, it does make
the exercise of the right to healthcare subject to national laws and practices.

The reference to national laws and practices appears to allow for variation between
the national systems, but it cannot be read as providing a maximum standard. Rather,
national laws established a minimum standard and Article 52 on the scope of the
Charter remains applicable, which shall not prevent Union law to provide more
extensive protection.

The Court of Justice of the EU (CJEU) may review national laws and measures in this
regard.

*b) In The Treaty on the Functioning of The European Union (TFEU) the theme of
public health is contained in:

- Art. 168 of the Treaty on the Functioning of the European Union (2012/C/326/01)15;

14
Trattati dell’Unione Europea, a cura di Antonio Tizzano, II edizione, Le Fonti del Diritto Italiano, Giuffrè
Editore, pag. 2610;
15
PUBLIC HEALTH

Article 168

(ex Article 152 TEC)

1. A high level of human health protection shall be ensured in the definition and implementation of
all Union policies and activities.
61
Union action, which shall complement national policies, shall be directed towards improving public
health, preventing physical and mental illness and diseases, and obviating sources of danger to
physical and mental health. Such action shall cover the fight against the major health scourges, by
promoting research into their causes, their transmission and their prevention, as well as health
information and education, and monitoring, early warning of and combating serious cross-border
threats to health.

The Union shall complement the Member States' action in reducing drugs-related health damage,
including information and prevention. C 326/122 EN Official Journal of the European Union
26.10.2012

2. The Union shall encourage cooperation between the Member States in the areas referred to in this
Article and, if necessary, lend support to their action. It shall in particular encourage cooperation
between the Member States to improve the complementarity of their health services in cross-border
areas. Member States shall, in liaison with the Commission, coordinate among themselves their
policies and programs in the areas referred to in paragraph 1. The Commission may, in close contact
with the Member States, take any useful initiative to promote such coordination, in particular
initiatives aiming at the establishment of guidelines and indicators, the organization of exchange of
best practice, and the preparation of the necessary elements for periodic monitoring and evaluation.
The European Parliament shall be kept fully informed.

3. The Union and the Member States shall foster cooperation with third countries and the competent
international organizations in the sphere of public health.

4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the
European Parliament and the Council, acting in accordance with the ordinary legislative procedure
and after consulting the Economic and Social Committee and the Committee of the Regions, shall
contribute to the achievement of the objectives referred to in this Article through adopting in order
to meet common safety concerns:

(a) measures setting high standards of quality and safety of organs and substances of human origin,
blood and blood derivatives; these measures shall not prevent any Member State from maintaining
or introducing more stringent protective measures;

(b) measures in the veterinary and phytosanitary fields which have as their direct objective the
protection of public health;

(c) measures setting high standards of quality and safety for medicinal products and devices for
medical use.

5. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure and after consulting the Economic and Social Committee and the Committee of the
Regions, may also adopt incentive measures designed to protect and improve human health and in
particular to combat the major cross-border health scourges, measures concerning monitoring, early
warning of and combating serious cross-border threats to health, and measures which have as their
direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding
any harmonization of the laws and regulations of the Member States.

62
In the field of health care the Union has a mere coordinating role which excludes in
principle the possibility to adopt harmonizing regulations within the Union (final part
of par. 5). Therefore, the EU cannot avail itself of the general option to intervene in all
cases of violation of fundamental rights on the part of national authorities.

The EU has competence to support, coordinate or supplement the actions of the

Member States (Article 6 TFEU) – in the health area the EU may not adopt legally
binding acts that require the Member States to harmonize their laws and regulations.

Therefore the power of the Union manifests itself normally through the launching of
programmes of a financial nature including, for the part which interests us,
programmes to fight AIDS and other infective diseases.

The European institutions can also adopt, through ordinary legal procedures,
incentives to protect and improve human health and the Council, upon the
Commission’s proposal, can give its recommendation.

As a matter of fact art. 168, par. 7, already mentioned, provides a reservoir of skills in
favour of the members who are responsible for the definition of their health policy and
for the organisation and supply of health services and medical assistance as well as the
allocation of resources they are entitled to. This reservoir should be considered as part
of the encouraging action that art. 168 par. 2 comma 2 proposes with the aim to
favour a major integration between national sanitary systems at least in the border
regions.16

6. The Council, on a proposal from the Commission, may also adopt recommendations for the
purposes set out in this Article.

7. Union action shall respect the responsibilities of the Member States for the definition of their
health policy and for the organization and delivery of health services and medical care. The
26.10.2012 EN Official Journal of the European Union C 326/123 responsibilities of the Member
States shall include the management of health services and medical

care and the allocation of the resources assigned to them. The measures referred to in paragraph
4(a) shall not affect national provisions on the donation or medical use of organs and blood.

16
Trattati dell’Unione Europea, a cura di Antonio Tizzano, II edizione, Le Fonti del Diritto Italiano,
Giuffrè Editore, pag. 1518 e ss;

63
Secondary EU law regulates access to health care for individuals affiliated with a
National health scheme in their EU Member States or in another State of EEA.

For migrants in an irregular situation who have been given a period of voluntary leave
and for those whose removal was formally postponed, the Directive 2008/115/EC
(Return Directive) of the European Parliament and of the Council of 16 December 16
2008 on common standards and procedures in Member States for returning illegally
staying third-country nationals, at art. 14 par. 1 b) confirms the obligation to protect
the health of irregular migrants17, guaranteeing emergency health care and essential
treatment of illness and states that particular attention must be paid to the situation
of vulnerable persons.

17
Article 14

Safeguards pending return

1. Member States shall, with the exception of the situation covered in Articles 16 and 17,
ensure that the following principles are taken into account as far as possible in relation to
third-country nationals during the period for voluntary departure granted in accordance with
Article 7 and during periods for which removal has been postponed in accordance with Article
9:

L 348/104 EN Official Journal of the European Union 24.12.2008

(a) family unity with family members present in their territory

is maintained;

(b) emergency health care and essential treatment of illness are

provided;

(c) minors are granted access to the basic education system

subject to the length of their stay;

(d) special needs of vulnerable persons are taken into account.

2. Member States shall provide the persons referred to in paragraph 1 with a written confirmation in
accordance with national legislation that the period for voluntary departure has been extended in
accordance with Article 7(2) or that the return decision will temporarily not be enforced.
64
Other EU law instruments regulate the access to health care for a variety of categories
of persons. For persons intercepted/rescued at sea by Frontex, see Regulation EU n.
656/2014 (Rules on Frontex-coordinated sea operations) that states that “participating
units shall address the special needs of (…) persons in need of urgent medical
assistance”.18

*c) The European Social Charter (ESC), is a Treaty of the Council of Europe which
guarantees social and economic human rights. It was adopted in 1961 and revised in
1996. It expressly guarantees the right to health in Article 1119.

The right to health protection is linked to the right to life and the prohibition of torture
and inhuman or degrading treatment or punishment; it is stated by the European
Convention on Human Rights (ECHR), (formally the Convention for the Protection of
Human Rights and Fundamental Freedoms), in Article 2, 3 and 8 which protect it
‘indirectly’.

Article 2 of the ECHR states that:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article
when it results from the use of force which is no more than absolutely necessary:
o (a) in defence of any person from unlawful violence;
o (b) in order to effect a lawful arrest or to prevent escape of a person
lawfully detained;

18
Article 4 par. 4.
19
Article 11ESC(r): “….The Parties undertake, either directly or in cooperation with public or private organizations, to take
appropriate measures designed inter alia:
1. To remove as far as possible the causes of ill-health;
2. 2. To provide advisory and educational facilities for the promotion of health and the encouragement of individual
responsibility in matters of health;
3. 3. To prevent as far as possible epidemic, endemic and other diseases, as well as accidents.
65
o (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3 of the ECHR states that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

And Article 8 of the ECHR states that:

1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others20.

4) Country profiles

France

Constitutional basis

The preamble to the 1946 Constitution guarantees in paragraph 11 “ to all, notably to

children, mothers and elderly workers, protection of their health, material security,
rest and leisure. All people who, by virtue of their age, physical or mental condition, or
economic situation, are incapable of working shall have to the right to receive suitable
means of existence from society”.

20
For the interpretation of the ECHR, the international treaty in which all Council of Europe member states are party, see
paragraph 5).
66
Moreover, the Charter for the Environment of 2004 21declares that “everyone has the
right to live in a balanced environment which shows due respect for health”.

Main characteristics of national health system

Article L 1110-1 of the Public Health Code states that “health providers, health facilities
(…) contribute to (…) guaranteeing equal access to healthcare for each individual as
required by their health condition.”

The healthcare system in France is a social security system, a compulsory national

insurance based system with universal coverage mainly based on professional
categories to which they belong.

The system, managed almost entirely by the State, is complemented by elements of

tax- based financing and complementary individual health insurance.

In January 2000, with the CMU Law of 27 July 1999 (Universal Health Coverage Act)
were created a basic universal medical coverage (CMU) and a complementary one
(CMU – C), in order to permit to have the right to statutory health insurance coverage
to enable people who are not covered until that moment by the health insurance
scheme.

With this change, all people authorized to reside in France can obtain health coverage
regardless to an employment, which is valid for one year. However, this scheme did
not include migrants with irregular status.

21
Constitutional Act No. 2005-205 of 1 March 2005.
67
To be entitled to basic CMU (and CMU- C) an individual must have a low income (lower
for the CMU –C), must be a French citizen, or have a residence permit or have started
the regularization process and have a proof of residence continuously in France (or in
French overseas departments and territories) for more than three months.

There is also supplementary health insurance assistance (ACS), also valid for one year,
which provides help for people who are not eligible to CMU and have a lower income.
People who have access to ACS receive financial support for supplementary health
insurance of between 100 and 550 Euro per year depending on age.

From July 2013, and further from May 2015, the criteria to be entitled to CMU and ACS
were revaluated and widened. Through this reform, at the time of its entry into force,
more than 500,000 people could obtain healthcare coverage and the number grew
about eight times higher in the next nine years22.

Access to healthcare system for migrants with irregular status

Migrants with irregular status who have been resident for more than three month in
France and who have low resources (the threshold changes every year), according to
Article L251-1 of the Social Action and Family Code, are entitled to have access to State
Medical AID (AME), which gives access for free care and is valid for one year and is
financed via taxes.

22
M. Crivellini, M. Galli, Sanità e salute, due storie diverse Sistemi sanitari e salute nei paesi industrializzati, p. 272, Franco
angeli, 2011.

68
The costs are fully covered, except for prosthesis (dental, optical, etc.), medically
assisted reproduction and medicines with limited therapeutic value.

For migrants with irregular status (adults) who do not comply with these conditions,
only emergency care is covered by the State.

If they have resources above the threshold, they have to pay for healthcare.

To be entitled to have AME coverage, migrants with irregular status have to prove
their identity with an identification document, have an address and also evidence that
they have been residing in France for more than three month.

The PASS system

In 1998, the Fight Against Exclusion Act of 29 of July, the law against social exclusion,
created the hospital PASS system, which aims to enable anyone to access outpatient
free hospital care, even without health coverage.

The DASEM (residence permit for medical reasons)

Foreign nationals ordinarily residing in France, since 1998, in accordance with the Code
of Entry and Residence of Foreign Nationals and Right of Asylum (CESEDA, now Article
L.313-11 Loi n. 2007-1631), could be entitled to a residence permit for medical reasons
69
and protection from expulsion if: reside in France; their state of health requires
medical care to avert health consequences of exceptional gravity (i.e. are suffering
from a serious illness: there is not a list of illness, but their state of health must be
treated with medical assistance in the absence of which may cause serious
consequences); access to appropriate treatment is not guaranteed in the country of
origin.

The permit for “private and family life” can be of one year (renewable), if they have
been in France for more than one year; or a provisional residence permit for care of six
month maximum if they have only been in France for a short time.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing, diagnosis (test + confirmatory test), treatment and care are free of charge
in France.

In particular, all migrants with irregular status have access to public information
centres for free and anonymous testing and diagnosis of sexually transmitted
infections (CGIDD), where people can receive information on sexually transmitted
diseases and their prevention and testing.

HIV infection is considered a case of emergency even if the patient has no health
coverage; the costs are covered by PASS system or by the FSVU.

Issues

70
About AME:

The proof of residence condition, of an administrative address, of their residence and

the information about their economic resource, often are a real barrier to access to
AME healthcare system. The documents which are accepted to prove these conditions
are not the same in all the social security agencies in the country.

The AME is valid one year but in practice its duration is reduced due to the delay
between the request submitted and obtained, because the duration of his validity
begins on the day of submission.

AME can be renewed, and the request for the renewal can be submit two month
before the AME expires. But the time for renewal takes more than two month, so
there is a gap in coverage.

Some migrants do not possess an identity document, so they can not submit an AME
request.

If they want to prove their identity with, for example, a birth certificate or another
similar document, these documents will have to be translated by an official translator,
not easily available and expensive.

So, a high percentage of migrants with irregular status residing in France who are in
principle entitled to AME coverage, do not receive it, and there are a lot of illegal
failures observed (also depending of the region).

In order to overcome this issue, Article L254-1 of the social Action and Family Code
created the Fund for Vital and Urgent Care (FSVU). This Fund finances essential care for
people who are not in the conditions to benefit from AME.
71
About PASS system:

The application of this system is imperfect and is different in every hospital. There are
no guarantees that people can find the needed service and it works only for outpatient
care.

About DASEM:

The expression “absence of appropriate treatment” in the country of origin can receive
an arbitrary and equivocal interpretation; for this reason in an instruction of 10
November 2011, the Ministry of Health provided a clarification with an extensive
interpretation, unfortunately not always followed.

Anyway, the biggest difficulties come from the complexity of the system. The
temporary residence permit requires the submission of an appropriate identity
document, as well as evidence of the medical condition and the lack of adequate
treatment in the country of origin.

Finally, sometimes, with a discriminatory practice, professionals and pharmacies deny

treatments or medicines to migrants with irregular status.

Good practices

In addition to AME and FSVU, PASS system and DASEM, in most cases the intervention
of NGOs (e.g. AIDES, Médecins du Monde France - MdM) help to solve problems
arising during the administrative process.
72
National law cases

Resident permit for medical reasons in France: Synthesis of two cases 23,24 -Protection
against deportation for ill migrants

Case reference: Conseil d’Etat, réf. 11 juin 2015, M. X., n° 390705

Summary

The Conseil d’Etat stated that the medical advice of the Regional Health Agency doctor
(MARS) was unfavourable to the deportation of a migrant in irregular situation who
cannot have access to care in his country of origin was constituting a new element with
access to the procedure named “référé-liberté” (an emergency procedure when a
fundamental right is about to be violated by a State measure), even though the
administrative tribunal has already ruled on the obligation to leave French territory
(OQTF), since the prefecture and the tribunal were not aware of this circumstance
when they ruled on the person's situation.

Fact and procedure

A Georgian in irregular situation, in France for a couple of months, was arrested by the
police. Because of his irregular situation, he faced a deportation measure, and is
placed in an administrative retention centre in order to be deported.

23
Edited by Nicolas Klausser, Chargé de projet – Doctorant, Aides, France.
24
Note : the pathology concerned in those cases is not HIV, but those « good practices » and the
legal procedures described here concerned every pathologies.

73
During his detention, he exercises a remedy against the deportation measure, but the
administrative tribunal approved the administrative measure. After that, the Regional
Health Agency doctor stated that because of the medical situation of this person
(hepatitis C), he cannot be deported in Georgia, where he couldn’t have access to the
medical care needed. This position of the Regional Health Agency Doctor permits to
this person to have an extra way of remedy, because both prefecture (who decided the
deportation in the first place) and the administrative tribunal didn't know about this
element when they stated.

If this decision is a good one from Conseil d’Etat, it is important to know that during
the judicial debate the Home office contest the medical advice of the Regional Health
Agency doctor, in order to deport the person concerned.

-Counter-medical investigation from prefecture and the judge's control

Cour d’appel de Bordeaux, 3 février 2014, n° 13BX01932.

Summary

The medical advice of the Regional Health Agency doctor (MARS) was favourable for
the delivery of a resident permit for medical reason to a person who cannot have
access to medical care in his country of origin. Despite this advice, the prefecture of
Dordogne denied the delivery of the resident permit, because contrary to the MARS, it
says that medical care are available in the country of origin. The person concerned
exercised a remedy against this decision. The administrative tribunal of Bordeaux
confirmed the prefecture decision, but not the Appeal Court of Bordeaux. This one

74
specified that the prefecture has not demonstrated enough the existence of
appropriate health care in the country of origin.

Fact and procedure

A migrant from Kosovo seeks for a resident permit for medical reasons, because of his
psychiatric disease (depression). The medical advice of the Regional Health Agency
doctor (MARS) was favourable for the delivery of this permit, but not the prefecture.
For motivation, this one provides a letter from French embassy in Kosovo from 2010,
who alleged that medical care is available in Kosovo. The Appeal Court has judged that
with this only document, the prefecture did not prove the existence of appropriate
health care in Kosovo for this person.

The interesting point is that the Court did not cancel the administrative measure
because the prefecture is not competent for medical evaluation (they called it
“counter-medical investigation from the prefecture”), but because it did not provide
enough proof of the availability of medical care.

AIDES and several other associations specialized in the defence of the rights of
migrants with health problems observed that in 63 cases related to counter-evaluation
from prefecture when the MARS evaluation was favourable to a resident permits, 62
judgments cancelled the denial of resident permit because the prefectures did not
prove sufficiently the availability of access to medical care in the country of origin.

Germany

Constitutional basis
75
In Germany the State’s obligation to guarantee unhindered access to proper medical
services derives directly from the Constitution, which declares human rights to be
inviolable and inalienable, and the State must also takes active measures to ensure
that people are able to make effective use of their fundamental rights.

The right to “physical integrity” is one of the fundamental rights of a human being
within the scope of the Basic Law (Grundgesetz, 1949) for the Federal Republic of
Germany. These fundamental rights protect both the physical and mental health of a
human being, but not the social well-being.

Main characteristics of national health system

Germany is a Federal Republic and the regulation of health services is shared between
the Federal Government, the Federal States (Länder) and civil society organizations.

Shortly, the Federal Government’s role is to check and fix general rules and the sixteen
Länder’s action is more direct and close to the service management.

The healthcare system in Germany is funded by a statutory contribution system, is

organized via a contribution-financed obligatory health insurance system.

There are two insurance systems: public statutory health insurance (GKV) made of
health insurance funds (Krankenkassen) and private health insurance (PKV). In both,
insurance payments are shared between employees and employers.

76
An insurance ‘for long term care’ (public or private) was introduced in 1995 and it is in
any case compulsory.

With the Statutory Health Insurance and Healthcare Competition Strengthening Act of
25 October 2006, entered fully into force in 2009, it is compulsory for all German
citizens and long term (lawfully) residents, to have a health insurance, the public one
since 2007, or the private one if they do not want to become affiliated with the public
health insurance and if they have a high income.

People who were once excluded from the health insurance system have had to be
reintegrated, and now there is universal coverage, but they have to write off their
debts since 2007 (public system) or since 2009 (private system).

Many individuals could not repay their debt, so with a new Law, came into force on 11
August 2013, this debt was reduced.

For people earning less than a certain threshold (56.250,00 Euro per year in 2016),
insurance is provided by the GKV; the others have to activate a private health
insurance.

The requirements to be insured under the public statutory health system (if nationals
or non-Germans lawfully residents) are: have a job in Germany and earn more than
451,00 Euro (as of 2016).

The statutory health insurance covers: preventive services, inpatient and outpatient
hospital care, physician services, mental healthcare, dental care, optometry,
physiotherapy, prescription drugs, medical aids, rehabilitation, hospice and palliative
care, sick leave compensation.

77
The GKV system, however, does not cover all costs related to medical services. In some
cases, small co-payments are request (not for medical consultations but for
medications).

Access to healthcare system for migrants with irregular status

If you are in Germany without documents, you cannot receive insurance through a
health insurance provider.

Nevertheless, according to the Asylum Seekers Benefit Act of 1 November 1993 and
successive amendments (AsylbLG), migrants with irregular status have a right to
medical care.

However, it does not include any general medical care, but it only covers: treatment
for acute illness and severe pain; antenatal and postnatal care; recommended
immunizations; preventive medical tests; anonymous counselling and screening for
infectious diseases.

Access to the emergency system (also) for migrants with irregular status is provided by
law, which states that in case of emergency, everyone should receive help (StGB 13
November 1998 and successive amendments).

However, with an evident legal contradiction, according to the Residence Act of 30 July
2004 (Aufenthaltsgesetz-AufenthG), Section 87(2) 2, “Any public institution shall notify
the competent foreign nationals registration authority forthwith, if , in discharging

78
their duties, they obtain the knowledge of : the whereabouts of a foreign national who
does not possess the required residence permit and whose expulsion has not been
suspended; a breach of a geographical restriction; any other grounds for expulsion; or
concrete facts which justify the assumption that the conditions exist for the
authorities’ right to contest pursuant to Section 1600 (1), no. 5 of the Civil Code”
(commonly referred to as ‘Denunziationsparagraphen’, Duty to Denounce).

This means that whenever they enter the doctor’s office, migrants with irregular status
always run the risk to be reported to the immigration authorities and of landing in a
detention centre awaiting deportation.

In September 2009, to try to limit this duty to report, Bundesrat issued an instruction
(the so called “verlängerte Geheimnisschutz“), which bounds hospital administrative
and medical staff and social services departments by medical confidentiality if they
obtain information on the status of a migrant with irregular status in hospital
emergency department. The regulation takes only effect in cases of emergency
treatments; it is not well-known in Germany and non-binding.

Therefore in practice health coverage for migrants with irregular status is limited to
emergency services and they do not have a real access to healthcare because they are
stopped by the duty to report them.

25 26
The German Residence Act also allows having a residence permit for foreign
national (including migrants with irregular status).

25
Aufenthaltsegestz vom 30 July 2004 (BGBl. I S. 1950) zuletzt geändert durch das Gesetz zur Umsetzung aufenthalts- und
asylrechtlicher Richtlinien der Europäischen Union vom 19 August 2007 (BGBl. I S. 1970). Retrieved on 1 June 2008.
26
Article 25 Residence Permit

(3) “A foreigner should be granted a residence permit if the conditions for a prohibition of
deportation are fulfilled in accordance with Section 60 (2) (3), (5) or (7).”
79
Pursuant to Article 25 (3) in conjunction with Article 60 (7) of the Residence Act, a
residence permit shall be granted to a foreigner facing a serious and concrete risk
against their life and physical integrity or freedom if returned to the country of origin.

Article 25(4) of the Residence Act deals with temporary residence permits on urgent
humanitarian or political grounds and can inter alia be applied to cases in which urgent
personal grounds arise.

The granting of a residence permit where judicial or de facto reasons render the
departure of the migrant impossible is allowed under Article 25 (5).

In case of chronic diseases (such as HIV/AIDS), if a doctor declares that a person is

unable to travel or cannot stop treatment in Germany, or if the patient is considered
able to travel but the treatment required by their condition is not possible in their
country of origin or not available to them due to lack of financial resources, the
residence permit for humanitarian reasons can be issued, if the applicant is able to
demonstrate that there is a serious risk to his health in his country of origin.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

(4) “A foreigner, who is not subject to a final deportation order, may be granted a residence permit
for a temporary stay if his or her continued presence in the Federal territory is necessary on urgent
humanitarian or personal grounds or due to substantial public interests.”

(5) “A foreigner who is subject to a final deportation order may be granted a residence permit if his
or her departure is impossible in fact or in law and the obstacle to deportation is not likely to be
removed in the foreseeable future.”

80
The Law on Preventing and Combating infectious diseases in humans of 20 July 2000
(Protection against Infection Act), in section 19, provides that also migrants with
irregular status are entitled to counselling and testing for transmissible diseases and
outpatient care.

The law also theoretically provides free HIV/AIDS treatment if the patients cannot bear
the costs, they have to apply for a Krankenscheien - illness certificate in order to be
eligible for public subsidies from the social welfare office, but the duty of denounce
prevents effective access to care.

In practice, only those who can demonstrate that there is a serious risk to their health
in their countries of origin can apply for duldung and get access to treatment.

HIV testing and diagnosis (test + confirmatory test) are anonymous and free of charge.
In every large German city there are medical centres (Gesundheitszentren or
Gesundheitsämter), accessible to all, which offer anonymous services (testing and
counselling). Tests are free or only cost a small amount (usually around 10 or 15 Euro)
and people do not need to provide their names.

Issues

If citizens (or long term residents) want to be insured by a private health insurance
provider, they will have to answer many questions or have themselves examined by a
doctor. They will be asked whether they have been sick in recent years, took
medications or drugs and whether they are HIV-positive. The health insurance provider
is entitled to charge extra premiums or reject a standard application depending on the
state of health.

81
However, private health insurance providers must accept anyone who is not eligible
for statutory health insurance and whose medical costs are not covered by the State. If
citizens have a chronic illness (such as HIV), they can only be insured at a more
expensive rate called “Basistarif”.

National regulations are very often interpreted and implemented in very different
ways in different German Sates, which makes it very difficult to generate general
statements.

Specifically, for migrants with irregular status, although (limited) access to medical
provisions is guaranteed according to the AsylbLG, de facto the Duty to Denounce
strongly limits the access to healthcare services for migrants with irregular status,
because the procedure for reimbursing the costs of emergency case is confidential,
while the procedure for non-emergency care is not.

They can only have access to outpatient services from independent physicians who
would waive their fees or from health providers who refuse to report migrants with
irregular status to the immigration authorities.

About the residence permit

Article 5 of the Residence Act sets out the general requirements for residence permits,
such as confirmed identity, sufficient means of subsistence and appropriate standard
of accommodation. While the residence permit mentioned above under Article 25 (3)
is exempted from compliance with all requirements, the other two residence permits
(Article 25 (4) and (5) may be exempted from all or some requirements only at the
discretion of the issuing authority.

82
Good practices

In addition to the resident permit, migrants with irregular status who are not in touch
with medical professionals offering treatments free of charge can rely on assistance
provided by non-governmental organizations, such as locally based AIDS service
organizations (ASO), Büro für medizinische Flüchtlingshilfe, Malteser Migranten
Medizin, Ärzte der Welt. Their contribution is remarkable – they often negotiate with
insurance companies and authorities to allow migrants with irregular status to have
access to treatment – but they certainly cannot compensate their lack of access to
public healthcare system.

Because of their restricted resources, they cannot sustain the cost of intensive or in-
patient treatment.

There are some existing models trying to improve medical care and treatments for migrants
with irregular status in Germany such as the case of “Anonymer Krankenschein” in Lower
Saxony (Hannover and Göttingen) and the Münchener Modell, but they focus mostly on
acute illness and pain and none of them, such as the centres above mentioned, can cover
the cost of HIV therapy on the long term.

Recently, local authorities, health professionals and NGOs call on German government
to change law on reporting migrants with irregular status27.

National law cases

27
See htt://picum.org/en/news/picum-news/48359.
83
About the residence permit under Article 25 (3)

According to the prevailing case law of the Federal Administrative Court

(Bundesverwaltungsgericht) these conditions are inter alia applicable should the
person concerned face a grave and serious health impairment shortly after return
because the illness cannot be adequately treated in the country of origin. Once these
requirements are met, the applicant is entitled to obtain a residence permit; except in
atypical and exceptional circumstances, the competent authority is obliged to come to
a positive decision28.

Greece

Constitutional basis

Article 21 Par. 3 of the Constitution of Greece of 1975 states that “the State shall care
of the health of the citizens and shall adopt special measures for the protection of
youth, old age, disability and for the relief of the needy”.

According to Article 5 par. 5 of the same text, everyone has the right to health
protection and genetic identity. In addition, according to Article 5 par. 2 of the
Constitution, everyone within the Greek territory shall enjoy full protection of their life
and their dignity without distinction of nationality, race, language, religion or other
belief. As it is accepted according to this article, it is prohibited to discriminate in the
health sector, which obviously is a necessary prerequisite for the preservation of life.

28
So, Undocumented And Seriously Ill: Residence Permits For Medical Reasons In Europe, PICUM, Brusseles, 2009, p.21.
84
Main characteristics of national health system

The Greek health care system was founded with the Law 1397/1983, which introduced
the notion of the National Health System and in his Article 1 says that health is a social
good and it should be provided free of charge at the point of delivery by the state
equitably for everyone, regardless of social and economic status.29 The system was
subsequently reformed by the Law 3918/11 (which created the National Organization
for Healthcare Provision), which created a central health found, EOPYY, and by the Law
4238/14 on primary healthcare.

The Greek healthcare System is a mix of public and private sectors. The Greek public
healthcare system (ESY) is based on social insurance and mainly financed via
mandatory contribution related to worker’s insurance. Private sector is financed from
out-of-pocket payments and by private health insurance. Now out-of-pocket
expenditure is ever increasing as a result of austerity measures and the restructuring
of the health care system towards a for-profit model.

All Greek citizens, (and non–national lawfully residents) are entitled to access to free
of charge healthcare services of the National Health System, if they have a registered
employment (and regular status).

Being related to work status, uninsured people – both nationals and non-nationals –
are facing problems regarding access to healthcare.

EOPYY guarantees free primary care services for citizens with insurance and it is
obliged to cover all citizens, also unemployed people. People without health coverage

29
C. Economou, Greece: health system review, Health system in transition, 2010, vol 12, n. 7.
85
could be covered by the public budget or could be helped by European Social Fund,
which are sufficient only for few people.30

Access to healthcare for individuals without health coverage, nationals or non-

nationals but with a regular status, has been recently improved by Common Ministerial
Decree n. 48985/2014, but only under certain conditions.

There is a hospital committee who decide case by case who has the right to free
medical aid, and this in practice is a barrier to healthcare.

Access to healthcare system for migrants with irregular status

In Greece, adult migrants with irregular status are not entitled to healthcare, with the
exception of cases of emergency.

As a matter of fact, the recent Law 4251/2014 (the new Migration Code) prohibit
healthcare for migrants with irregular status.31

Only in cases of emergency - and the concept of urgency is a medical-technical

definition and it is decided by attending physician - hospitalization is provided,
healthcare is financed and treatments for infectious diseases – including HIV - is
provided until stabilization of the health conditions is achieved.

30
The proportion of the yearly average of ESF beneficiaries in Greece in relation to the total population between 15-64 years
was a little bit more than 4%, fifth highest in the EU (2000-2006). [European Union, The European Social Fund and Health,
2010, p.5]
31
See Article 26§1 that states: “Public services, legal entities of public law, local authorities, public utilities and social
security organizations shall not provide their services to third-country nationals who do not have a passport or any other travel
document recognized by international conventions, an entry visa or a residence permit, and, generally, who cannot prove that
they have entered and reside legally in Greece. Third-country nationals who are objectively deprived of their passport shall be
given the right to transact with the agencies referred to above, simply by showing their residence permit”.
And see also Article 26.2a (As Law 2910/2001) that contains an exception for minors.
86
A Common Ministerial Decision (GG 1453 of 5 June 2015) – and before the Law
3907/2011, amending Law 3386/2005 - provides that persons suffering from serious
health problems (also foreigners) are entitled to have a residence permit for
humanitarian reasons.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

Greece provides HIV testing, diagnosis (test + confirmatory test), treatment and care
free of charge for migrants with irregular status.

In particular, a Common Ministerial Decision, (93443 of 18 August 2011) foresees that

all people living in Greece, and also migrants with irregular status, may have access to
HIV testing and treatment (and for other infectious diseases) ‘until their health
condition is stabilized’.

So, migrants with irregular status who do not have access to ARV therapy in their
country are entitled both to treatment and temporary residence permit for the
duration of their treatment.

Issues

Foreigners with irregular status are deprived of healthcare right and are not admitted
to hospitals and clinics for non-emergencies. In addition, they do not qualify for
coverage as uninsured or social protection certificate.
87
Even though HIV testing is free for everyone, in limited state HIV clinics and
community venues, most state HIV healthcare services demand social insurance to
provide free testing, thus making testing either non-free or non-anonymous.

Good practices

In addition to the resident permit for humanitarian reasons, mobile units and stable
structures of NGOs (e.g. PRAKSIS, Checkpoints etc.) offer free and anonymous testing
for HIV in collaboration with some communities of migrants in the centre of Athens, in
Piraeus, in Thessaloniki and in Patras. They provide information on HIV, condoms,
counselling, free and anonymous rapid testing.

The legal frame of the country had been problematic as during 2013 the MoH re-
established Decree 39a that gave the authorities the possibility of mandatory testing
among migrants, drug users and sex workers. Fortunately, this decree was recently
repealed (April 2015) by the subsequent government, partly as a response to the
pressure and continuous actions by the Civil Society.

Hungary

Constitutional basis

The Fundamental Law of Hungary (2011), Article XX Paragraph (1) declares that
“Everyone shall have the right to physical and mental health”.

88
And the Healthcare Act, which sets general rules in the field of healthcare, emphasizes
the importance of equal access and equal treatment.

Main characteristics of national health system

Hungary introduced a compulsory state health insurance system in 1990. To access

free healthcare services, one must have a valid national health insurance, which can be
obtained either via employment or via statuses (pensioner or student). Those that do
not fall under these categories must pay for insurance individually.

The National Health Insurance Fund (HIF) provides universal population coverage
throughout the country without disparities.

Next to the Healthcare Act, the Act on Local Governments assigns responsibility for
arranging the provision of primary healthcare services to local governments.

Certain health care services fall under the category “urgent need” defined by a
Ministerial Act, and in this case healthcare is provided even if one does not have a
health insurance.

Several diseases and conditions are listed under urgent need, including ‘infectious
diseases/conditions that by themselves or as a result of their complications cause a life
threatening conditions’.

89
However, in the view of the State Secretary of Health and the HIF, in case of HIV/AIDS
‘urgency’ does not exist and as such HIV-care and antiretroviral therapy are not
considered as urgent lifesaving health services.

Access to healthcare system for migrants with irregular status

Migrants with irregular status are not entitled to be covered by the Hungarian health
insurance scheme.

Therefore, they do not have access to any free healthcare service besides emergency
care, that is always free of charge, on the basis of what is established by the Health
Act, which says that “a non-citizen in need of emergency care within the border of the
Republic of Hungary shall receive immediate treatment” and “a non-citizen requiring
medical intervention within the border of Republic of Hungary shall have access to the
said intervention under the same conditions as a Hungarian citizen”.

Since it does not provide any conditions on grounds or residence status, it may be
assumed that migrants with irregular status are covered by this provision and the costs
are covered by the HIF.

As regards other medical services, migrants with irregular status must pay and if they
cannot, the costs of the health care provider are reimbursed by HIF.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing is free of charge, for treatment see above.

90
Issues

In the absence of a clear definition of urgent need/emergency care, it falls to health

providers to interpret what constitutes an urgency, an emergency, and so there are
many differences of interpretation among the hospitals, and the competent authority
in order to give reimbursement often, as seen, does not have the same appraisal
concerning what can be considered an urgency, an emergency.

Furthermore, the recent waves of xenophobia will be an important obstacle in trying

to extend healthcare for people with irregular status.

Good practices

The OLTALOM – Hospital is a private hospital providing direct medical assistance to

uninsured people (homeless and also migrants with irregular status) in Budapest
completely free of charge.

Many other NGOs (for instance, the Hungarian Civil Liberties Union, the Hungarian
Helsinki Committee, Menedék- Hungarian Associations for Migrants) try to help
migrants with irregular status.

Italy

Constitutional basis

91
Article 32 of the Italian Constitution says that: “the Republic protects health as a
fundamental right of each individual and as the interest of the community, and
guarantees free assistance and treatment to the poor”.

Article 2 of the Constitution also states that:

“The Republic recognizes and guarantees the inviolable rights of the person, as an
individual and in the social groups where human personality is expressed. The Republic
expects that the fundamental duties of political, economic and social solidarity be
fulfilled”.

Main characteristics of national health system

Based on the model of the UK National Health Service, the Italian National Health
Service (SSN) was founded with Law n. 833/1978 and later reformed in 1992-1993.

It is a public system aiming to grant universal access to an equitable level of health

care throughout the country.

It operates at three levels: a central level, a regional level and a local level.

The responsibility for the provision of health care is shared between the Central
Government and the Regions. The State guarantees access to healthcare for everyone
throughout the country with general health laws (central level), and the twenty
Regions must implement the general aim with regional health laws (regional level) and
have exclusive competence to regulate and organize the health care system.

The ASLs (Local Health Administrations) provide health care services at the local level.
92
The system is financed through general taxation (direct and indirect). The ASLs also
receive payment of the ‘tickets’, moderate fees provided by the system which are
proportional to one’s income and social status or health status.

Access to healthcare system for migrants with irregular status

Migrants with irregular status do not have the right to register in the Italian National
Health Service.

However, since 1998, with the introduction of the Testo Unico delle disposizioni
concernenti la disciplina dell’immigrazione e sulla condizione dello straniero, (Single
Text on the provisions governing immigration and the status of foreigners) - the basic
law on immigration (D.L.vo 286/1998) - health care is ensured to migrants with
irregular status in some areas.

Article 1 of T.U. 286/1998 ensures to the foreign nationals, at any rate present on the
territory of the Republic, the fundamental human rights.

Article 35 T.U. 286/1998 ensures to irregular foreign nationals on the national territory
outpatient and hospital urgent and essential medical care, both including continual
treatment, preventive care, care provided for public health reasons including in more
detail: prenatal and maternity care on an equal basis with Italian citizens; care for
minors; vaccinations; activities of international prevention; diagnosis and treatment of
infectious diseases.

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Article 43 of D.P.R. 349/1999 “Assistenza sanitaria per gli stranieri non iscritti al
Servizio Sanitario Nazionale” (Health care for foreigners not registered in the Italian
national health care system), provides for the assignment to migrants with irregular
status – defined as “Stranieri Temporaneamente Presenti” (temporarily residing
foreigners) of an anonymous “STP code”, which guarantees the right to (some of the)
above mentioned treatments free of charge, as well as the attribution of the
“indigence status”.

It should be noted that the different Regions enforce national laws differently,
providing different coverage.

The document providing the STP code is issued by a specific public health authority
(the hospital administrations or the ASLs -local health administrations), is free of
charge, valid throughout Italy. It has a validity of six month and can be renewed.

The costs incurred for providing health care to migrants with irregular status are
covered by the Ministry of Interior (for the ‘urgent and essential’ care) and the
‘National Health Fund’ (for other care services as mentioned in article 35 T. U.
286/1998).

Article 35 of T.U. 286/1998 clearly states that authorities should not be informed when
migrants with irregular status seek health care.

The law (Article 36 of T.U. 286/1998) states that migrants and foreign nationals can
request and obtain a specific visa and the related residence permit for health care.

94
Moreover, Article 5 (6) of the T.U. 286/1998), defines the scope under which a
residence permit may be refused by the Italian State and stipulates that, as an
additional ground, revocation or refusal may also be based on conventions or
international agreements when the applicant does not satisfy the conditions of stay in
one of the contracting States. However, cases in which serious matters of
humanitarian character or individual rights arising from constitutional or international
obligations at stake will be exempted.

This text serves as a legal basis for residence permits on humanitarian or constitutional
grounds and provides the possibility of granting an atypical residence permit to
severely ill migrants with irregular status already residing in Italy. However, Italian
Authorities have ample margins of discretion in granting it.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing, diagnosis (test + confirmatory test), treatment and care, as well as
hospitalization in inpatient and outpatient clinics are ensured at the same conditions
guaranteed to Italian citizens.

Issues

Even if the Italian health care system is considered as very equitable because good
health coverage is provided by law to migrants with irregular status, nonetheless the
problem is that the law is not evenly implemented throughout Italy, or is not
implemented in all circumstances.

Important differences still exist among the twenty Regions and among the different
hospitals and ASLs.

95
Naga- Associazione volontaria di assistenza socio sanitaria per i diritti di stranieri e
nomadi, an organization based the Lombardy region giving social and health assistance
to foreigners and temporarily residing persons, recently conducted a survey to
document and denounce the cases of unequitable application of the law32.

The results of this survey are discouraging: a big gap between law and practice does
exist and the general legislation on health care for migrants with irregular status is not
rightfully applied in Lombardy. There is evidence of failures to comply with current
legislation and extremely different procedures are adopted in the hospitals, at the
discretion of the hospital management or of individual healthcare staff.33

The lack of knowledge about the current legislation does not only affect healthcare
providers. Evidence shows that in Italy many migrants with irregular status are not
aware of their rights. Differences between lawful citizens and migrants with irregular
status still persist and refer to difficulties in accessing testing and treatment services
due to lack of information, ignorance, cultural and language barriers, fear to be
arrested.

Good practices

As in many other countries, also in Italy, in addition to the residence permits issued for
humanitarian reasons, assistance to migrants not registered in the national health care
service is provided in different ways, as documented through the experiences

32
Naga, Health is (not) permitted. Survey on access to health care for undocumented migrants in hospitals in Milan, from
January 9, 2014 to February 28, 2015.
33
Cfr. Abstract of Naga, Health is (not) permitted. Survey on access to health care for undocumented migrants in hospitals in
Milan, from January 9, 2014 to February 28, 2015.
96
observed at local level, with a crucial role played by voluntary organizations,
community groups and NGOs.

NGOs (Naga, Caritas, LILA) give support and provide basic social and health care (as
well as some specialized care). They try to bridge the gap between law and practice
and make efforts to address these issues by publishing and disseminating guides and
targeting specific groups34.

National law cases

The Italian Constitutional Court has defined the right to health as a “primary and
fundamental right that (…) requires full and comprehensive protection”, to be
recognized to anyone, and therefore considered as a public service for every person 35.

In its decision n. 309/1999, the Constitutional Court stated that the balance in the right
to health protection must necessarily warrant a specific central core, related to the
deep substance of human dignity.

The Constitutional Court has also ruled that the alien citizen must receive a basic core
of the right to health, to be intended as a fundamental human right, to be recognized

34
‘It seems useful to mention the case of the Centro di Salute Internazionale e Medicina
Transculturale (Centre for International Health and Transcultural Medicine) established by the Local
Health Care Office (ASL) of Brescia, which recently also developed a local Epidemiological
Observatory of Immigrants. The structure not only provides health care benefits to legal and illegal
immigrants, but also monitors the health conditions and the most common diseases of the migrant
population.’: A. De Petris, Constitutional provisions and health care services for illegal immigrants in
some federal and regional EU member states: looking for best practices, Working Paper 6/2014, Luiss
Guido Carli, Dipartimento di Giurisprudenza, Roma;
35
Constitutional Court, decision 992/1988; see also decisions 88/1979, 132/1985, 61/1987.
97
also to foreigners, whatever their legal conditions with respect to the legislation about
entry and residence in Italy, and that the expulsion of a severely ill migrant would be
detrimental to the right of every person present in Italy to have access to essential and
continuous health care pursuant to Article 2 and 32 of the Constitution (Constitutional
Court, judgment 252/2001 but see also decisions 269/2010, 299/2010 and 61/2011).

The administrative Courts (Tar of Lombardy, and of other Italian regions as Piemonte,
Lazio and Sicily) in their constant jurisprudence state that the request of a residency
permit must be assessed and consequently released even if such request has been
presented by a migrant with irregular status36, and that a person suffering from severe
illness who does not have the possibility to obtain adequate medical treatment in the
country of origin should not be expelled.

The Supreme Italian Court of Cassation (Corte di Cassazione) has defined the right to
health as an “absolute and primary right” that cannot be conditioned nor influenced by
any legal status37. Furthermore, it has stated that HIV positive migrants with irregular
status who are undergoing treatment cannot be expelled from the national territory,
because HIV treatments are ‘lifesaving medicines’ or ‘in any case necessary to avoid
the worsening of one’s health conditions’)38.

The Netherlands

Constitutional basis

36
Lastly, T.A.R. Palermo, May 28 2015, sentence n. 1252.
37
Cass. S.U. 796/1973 and S.U. 999/1973.
38
Cass cases n. 7615/2011 I civil section e n. 145000/2013 S.U..
98
According to the Dutch Constitution, the Government has a duty to ensure social
security for all and to ensure the distribution of wealth (Article 20), as well as public
health (Article 22).

Article 1 (equal treatment), Article 10 (the right to respect and protection of personal
privacy) and Article 11 (the right to the inviolability of one’s person) are also relevant
to the right of health.

Main characteristics of national health system

The Netherlands, since 2006, has a single compulsory health insurance scheme,
operated by private health insurance companies. Competing insurers negotiate with
providers on price and quality, and patients are free to choose the provider they prefer
and join the health insurance policy which best fits their situation.

The Government has to control quality, accessibility and affordability of healthcare.

All regular residents in the Netherlands are obliged to take out health insurance
covering a standard package of essential health care, determined by the Government,
which includes visits to general practitioners or specialists, outpatient treatments in
hospital, hospitalization, emergency treatment, transport to the hospital, maternity
care and obstetrics and mental healthcare.

To cover costs not included in the standard package, people can take out
supplementary insurance whose premium is freely determined by private insurers,
who are entitled to pursue profits.

99
Insurance holders have to pay a fixed (elevated) monthly premium and also (which
currently range from 82 to 112 Euro), when accessing healthcare services and
treatments, a franchise (elevated too); once they have done this, they do not have to
pay any costs for services included in the standard package and there is no out of
pocket expenditure.

Although the Government claims that the new system is a good balance between a
solid social basis and the dynamics of the market, an increasing number of patient
facing poverty have a difficulty paying this franchise. In order to pay lower monthly
premiums, they often opt for a higher franchise.

Authorized residents on a low income have a right to financial help.

Access to healthcare system for migrants with irregular status

Migrants with irregular status are not entitled to take out health insurance in the
Netherlands.

The Linkage Act of 26 March 1998 (or Benefit Entitlement Act), linked certain rights,
such as the right to State medical insurance, to the condition of authorized residence.
So, non-residents are not allowed to the Dutch social insurance scheme.

100
However, after the Aliens Act (2000), migrants with irregular status have the right to
emergency care, “care that is medically necessary”, and care needed “in situations that
would jeopardize public health”. 39

If they have no other healthcare insurance – as it usually happens –migrants with

irregular status are expected to pay for the healthcare services by them, unless it is
proved that they cannot pay.

If they cannot pay, in theory healthcare providers, hospitals and pharmacies will
provide care or treatment and then ask for reimbursement from the specific public
fund. General practitioners can recover 80% of their costs of a consultation, but in the
case of secondary care, medical costs are only reimbursed for the hospitals which
entered into an agreement with the healthcare authorities.

Article 64 of the Aliens Act 2000, in conjunction with Article 3.46 of the Aliens Decree
2000, states that the expulsion of a migrant with irregular status can be suspended as
long as his state of health would make it ‘inadvisable’ for him to travel40.

This suspension of expulsion is only applicable in emergency cases and it is usually

granted for six months, but a postponed departure can be granted for a maximum of
one year.

After one year of postponed departure due to a medical emergency (Article 64),
patients can file for a residence permit for medical treatment.
39
In 2007, an independent commission of medical (and social and legal) experts, clearly defined ‘medically necessary care’:
doctors must provide adequate and appropriate care by following the same guidelines, protocols and code of conduct that
medical and academic professional organizations adhere to in care for any other patient. Healthcare should not be affected by
uncertainty about the duration of the patient’s stay in the Netherlands and cannot be influenced by financial aspects. Cfr.
MdM International Network, Legal report on access to healthcare in 12 countries, 8th June 2015, p. 83
40
This means that ‘termination of medical treatment would lead to death, disability or another form of serious psychological
or physical damage whitin three month’ Article B8/9.1.3. of the Aliens Circular 2000.
101
Article 14 of the Aliens Act 2000, in conjunction with Article 3.4 (1.o) of the Aliens
Decree 2000, states that a temporary residence permit may be granted if medical
treatment is needed in the Netherlands as the only country in which the special
treatment can take place.

This permit has duration of one year and in exceptional cases, of five years. Patients
must prove that they can cover their living and treatment costs during their stay and
they must have obtained an advance authorization to enter the country.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing and diagnosis (test +confirmatory test) can be done at a general
practitioner’s office. Furthermore, a national ‘complementary sexual healthcare
subsidies’ system offer anonymous and free of charge screening to most at risk
populations. These populations are broadly defined, so may also include migrants with
irregular status.

HIV treatment is certainly part of the ‘medically necessary care’ to which migrants with
irregular status are entitled, but many barriers remain in practice. Only hospitals which
have a contract with the National Healthcare Institute can apply for compensation for
the costs of HIV care given to migrants with irregular status.

Issues

In practice, there are many barriers to healthcare for people with irregular status.

102
Sometimes general practitioners refuse patients because they refuse to actuate the
reimbursement scheme or because the patient cannot pay the remaining 20% of the
consultation fee, or because they do not know the reimbursement scheme.

In addition, it is considered that general practitioners, to be reimbursed, have to

provide the identity and the evidence of the insolvency of the patient and anyway that
the reimbursement is simply a possibility, because medical professionals do not have a
recognized right to claim a refund.

There is a general lack of information about how the system works.

And regards to the residence permit for medical reasons after one year of postponed
departure (Article 64), should be noted that the application process is particularly long
and difficult41, and this prevents an effective protection.

In 201342 and 201543, the National Ombudsman condemned the many obstacles to
access and the procedure, and also held a critical view regarding the assessment of the
BMA (State Medical Service) about the accessibility and availability of care in the
country of origin.

Good practices

Many NGOs (like the National Health Care Institute, Soa Aids Netherlands, the Dutch
HIV Association, Lampion-Pharos, and Doctors of the World) make remarkable efforts

41
E.g., the need for formal proof of identity and medical declarations from all healthcare providers involved issued within the
last six weeks, etc.
42
Letter from the National Ombudsman to the Secretary of State for Security and Justice, 4 September 2013.
43
Report further to a complaint against the Medical Advisors Office, BMA, National Ombudsman, 19 March 2015.
103
to provide medical assistance, accessible information to all, to set up prevention
activities, and to help the migrants with irregular status to healthcare access.

Poland

Constitutional basis

The Constitution of Republic of Poland of 199744 guarantees all citizens the right to
equal access to health services financed from public sources, irrespective of their
ability to pay.

Main characteristics of national health system

The Polish healthcare system is basically a (decentralized) mandatory insurance based

system, in which voluntary health insurance (VHI) does not play an important role, and

44
Article 68

1.Everyone shall have the right to have his health protected.

2.Equal access to health care services, financed from public funds, shall be ensured by public
authorities to citizens, irrespective of their material situation. The conditions for, and scope of, the
provision of services shall be established by statute.

3.Public authorities shall ensure special health care to children, pregnant women, handicapped
people and persons of advanced age.

4.Authorities shall combat epidemic illnesses and prevent the negative health consequences of
degradation of the environment.

5.Public authorities shall support the development of physical culture, particularly amongst children
and young persons.

104
is mostly provided in the form of medical subscriptions offered by employers in the
context of occupational health.

Compulsory health insurance, complemented with financing from State and regional
local government budgets, covers the main part of the population and guarantees (on
paper) access to a broad range of health services.

The National Health Fund (NFZ), the sole payer in the system, is in charge of health
care financing and contracts with public and non-public health care providers. The
Ministry of Health is the key policy maker and the regulator in the system. So, the NFZ
covers medical benefits according to the list prepared by the Ministry of Health; any
additional benefits have to be covered by the patient.

Certain health care tasks and regulatory functions have been decentralized. Other
tasks (such as health care promotion and prevention) have been transferred to the
local governments.

The NFZ has recently attempted to increase efficiency, mainly by shifting funds to
primary care and introducing new payment mechanisms.

Access to healthcare system for migrants with irregular status

There is no specific legislation targeting this issue.

The only care migrants with irregular status can access free of charge is that provided
by rescue teams outside hospitals in the case of emergency.
105
Given the obligation imposed (by Article 7 of the Law of Health Protection) on health
care providers never deny assistance in case of immediate danger to life or health,
migrants with irregular status can be treated in the emergency units, but they should
bear the total cost of the care.

No duty to denounce exists for Polish health workers.

The law contemplates a residence permit due to humanitarian reasons and consent for
tolerated stay.

Foreigners who may not be obliged to return to their country of origin for important reasons may be
granted consent to stay in Poland due to humanitarian reasons or consent for tolerated stay.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing and diagnosis (test +confirmatory test) are free of charge.

Antiretroviral treatment and care are not free of charge.

Only immigrants who have health insurance (which is almost impossible to obtain,
especially for those with irregular status) can take full advantage of the medical
services in Poland.

106
In the newly developed National Program for HIV prevention and care for people living
with HIV in the years 2016-2020 it is secured the right to medical care and ARV
treatment also for irregular migrants. The program is waiting for approval by the
Council of Ministers of the Republic of Poland.

Issues

In general, financial barrier seems to be the greatest barrier in achieving accessibility of

health care services.

Migrants with irregular status in particular, are very discriminated against in Poland to
the extent that they can access only a few types of health care free of charge.

With regard to HIV, the main difference is the availability of free antiretroviral
treatment and constant medical care and only if they have an health insurance (quite
impossible) can have full access to the treatment.

Good practices

The NGOs’ role is very important (like Helsinki Foundation for Human Rights Warsaw
and SIEC PLUS). Caritas Polska, ‘Punkt Pomocy Medycznej’ (Point of Medical Help) and
Doctors of Hope are charity organizations geared mostly at providing medical care for
(Warsaw’s) homeless population and people with irregular status. Those organizations
have limited resources and can provide a very basic care.

Serbia

107
Constitutional basis

Article 68 of the Constitution of the Republic of Serbia guarantees the right to health:
‘Everyone has the right to protection of their physical and mental health…´.

Along with that, there is the human rights protection framework within the European
Convention of Human Rights and the national Health Protection Act and Patient’s
Rights Act which includes the right to health and healthcare and are included in the
Serbian legal system.

Main characteristics of national health system

In the Republic of Serbia, health care is provided both through State and private
sectors. The Law on Health Insurance regulates compulsory and voluntary health
insurance.

Health care services are financed through the National Health Insurance Fund (HIF),
which is the compulsory state healthcare insurance, and is responsible for financing
the system; voluntary insurance may be provided by the means of private insurance.

Both employees and employers pay contributions for the compulsory state health
insurance and the health care service is free of charge for a patient on the spot where
it is provided.

108
Private health insurance can be purchased on individual or group basis in order to
provide safety in case of illness. Private health sector is developed but not
incorporated in the national health system.

Access to healthcare system for migrants with irregular status

Healthcare for migrants with irregular status is only covered in the cases of medical
emergencies and lifesaving interventions. In these situations it is financed by the
National Health Insurance Fund.

Other healthcare services are provided on the basis of healthcare insurance (almost
impossible to have for people with irregular status) and personal documents and thus
unavailable to them.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

HIV testing is free of charge and anonymous, is available to all people regardless
whether they have documents or healthcare insurance. Nevertheless, test for
confirmation of HIV status is only available as a part of the health insurance covered
services and thus it is unavailable for those without insurance.

Conversely there is no national legal entitlement to HIV treatment for migrants with
irregular status.

Issues

109
The actual situation with migration has conditioned and will continue to makes
substantive adjustment in the field, and probably legal framework. Depending on the
developments in migration an increased demand for HIV treatment and support may
occur.

Good practices

Despite the absence of national legal entitlement to HIV treatment for migrants with
irregular status, there have been examples in practice that doctors on HIV clinics
provide urgent care for patients who do not have documents at their personal
responsibility. Also, in Serbia regulations allows health insurance on the base of HIV
positive status as a public health measure, thus every HIV positive person which legally
resides in the country can be insured (this doesn’t apply to migrants with irregular
status)

NGOs like Q-CLUB and Belgrade Centre for Human Rights and Asylum Protection
Centre have an important role.

Spain

Constitutional basis

Article 43 of the Spanish Constitution of 1978 recognizes the ‘right to health

protection’ and healthcare for all citizens and goes on to say that ‘it is incumbent upon
the public authorities to organize and watch over public health by means of preventive
measures and the necessary benefits and services. The law shall establish the rights
and duties of all in this respect’.
110
Main characteristics of national health system

The main principles governing the exercise of this right are regulated by the General
Health Act of 25 April 1986, which has created the National Health System (Sistema
Nacional de Salud, SNS), and states that ‘every Spanish citizen, as well as foreign
nationals who have established their residence in the country, are entitled to the
protection of their health and to healthcare’.

The Spanish healthcare system is a tax- based system, in which the National Health
System comprises the public healthcare administration of both the Central
Government Administration and the Autonomous Communities (AC).

The system has been decentralized and the Ministry of Health defines the minimum
standards and requirements of health care provision and the ACs’ health departments
organize and provide the health services and implement the national legislation.

Public financing is complemented by out-of- pocket payments to the public system as

well as to the private sector and contributions to voluntary insurance.

On 28 May 2003 was approved the Law 16/2003 on the cohesion and quality of the
National Health System (Ley de Cohesiòn y Calidad); Article 3 governs the access to
health care within Spanish National Health System.

111
The Law 16/2003 considers as holders of the universal right to health protection and
healthcare for all people residing in the country whatever their financial resources or
legal status.

In 2012 the Spanish Parliament has radically reformed health coverage by adopting the
Royal Decree-Law 16/2012 of 20th April , ‘on urgent measures to ensure sustainability
of the National Health System and to improve the quality and safety of its services’,
which came into force on September 2012 and then, on 3 August, the Royal Decree-
Law 1192/2012, regulating insured and beneficiary status for the purposes of
healthcare in Spain charged to public funds through the National Health System.

This Decree established a new form to have access to health care for those persons
which have not the insured condition. For having access to this agreement, people
(who did not have an annual income that exceed 100.000,00 Euro and who did not
have health coverage) have to be registered in the register of inhabitants for at least
one year and have to pay an amount related to age.

Until April 2012 Spanish law guaranteed a real access to care for all people residing in
the country, whatever their financial resources or legal status.

With the Royal Decree 16/2012, access to healthcare is considerably reduced and
Spanish health coverage radically changed. The Decree constitutes a real structural
transformation.

Those Decrees – which are not a law but a ‘Real Decreto Ley’, which means that it has
been the executive and has not gone through parliamentary debate and was made in a
rush, such an austerity measure, and whose wording is vague and confusing – link the
right to healthcare and public financing of medicines to the administrative and
112
employment status of citizens and limit the assistance of those not insured to
emergencies (and pregnant women and minors). So, patients who cannot claim
‘insured’ status (as defined by Decree) can only access healthcare services if they pay
for it themselves or if they are eligible for a ‘special provision’, that includes a basic
package of services.

The Royal Decree Law has been object of six appeals of unconstitutionality by several
AC, alleging a breach of universality as a principle. The AC also alleged procedural
issues as well as a breach of regional competencies.

Recently Spain’s Government has announced a new change in the law, to allow illegal
immigrants to access free public health care45, and this is under discussion.

Access to healthcare system for migrants with irregular status

Before 2012, access to the Spanish National Health System was universal and free of
charge for everyone, including migrants with irregular status.

The Ley Organica de Extranjería no. 4 of the year 2000 introduced important
innovations in this field. Firstly, it recognized the right to health care services also to
illegal immigrants, previously not taken into account by Spanish law.

The Act also introduces a mandatory minimum level of health care protection,
recognizing emergency treatments to all foreigners without restrictions or limits due to
nationality or legal status.

45
See: Spain to allow illegal immigrant to access free public healthcare, www.telegraph.co.uk.
113
Any refusal by members of medical staff to take care of these people claiming a lack of
the health insurance card or of the residence permit results in the initiation of
disciplinary proceedings against them.

After the adoption of the Royal Decree Law 16/2012, migrants with irregular status are
completely excluded from healthcare system, with the exception of emergency care
and children under 18 years old and pregnant women.

Also migrants with irregular status may obtain personal health insurance according the
Royal Decree-Law 1192/2012, after a least one year of residence in Spain, if they can
afford the costs to pay for it. This health insurance costs between 60 and 157 Euro per
month depending on age.

Those who cannot afford to pay for personal health insurance and/or have been in
Spain for less than one year do not have access to healthcare.

This is what the national law says. Nonetheless, many ACs in Spain have rejected the
Royal Decree and have developed different laws or regulations in order to allow
migrants with irregular status access to healthcare.

Royal Decree 557/2011 Article 126 states that a temporary residence permit on
humanitarian ground can be granted to a foreign national if he is affected by a serious
disease which occurred after his arrival in Spain and which needs specialist medical
care; there is no access to the treatment in the country of origin; the absence of
treatment or its interruption could lead to a serious risk for the patient’s health or life.

114
This permit is valid for 1 year and is renewable as long as the conditions are met and in
order to demonstrate the need a clinical report can be submitted to the authority.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

The entry into force of the Royal Decree Law 16/2012 excluded almost all people with
irregular status from the National Health System.

The new provision abolished the health care card previously granted to illegal
immigrants, who therefore can no longer access free health care, now assured only to
holders of a national or a European health insurance card.

In February 2014 the Ministry of Health, Social services and Equality published a
document entitled ‘Healthcare interventions in situations of public health risk’
approved by all the ACs. This document establishes the right of everyone to healthcare
(including preventive care, follow up and monitoring) every time it is suspected an
infectious disease subject to epidemiological control and/or elimination at national or
international level, and also for infectious disease requiring long term and chronic
medical treatment, such as HIV.

In addition, as said above, many Autonomous Communities have implemented access

to healthcare for migrants with irregular status, in particular, regarding the treatment
of infectious diseases.

So, in practice, in most of the ACs HIV testing, diagnosis (test and confirmatory test)
and treatment and care are provided.

115
Issues

The reform of 2012 has a severe impact on most disadvantaged and vulnerable groups,
especially individuals with low incomes and/or without residence permit, and excluded
many people from access to healthcare, with real, dangerous effect on the
population’s health, ‘specifically concerning infectious diseases like (…) HIV- infected
patients (…)’46.

In addition, the 2012 rule change has led to a saturation of accident and emergency
wards in hospitals47 and the new regulation has also been criticized by those who have
observed that the reform will not produce substantial savings for the Spanish
economy48.

Moreover, the reject of the Royal Decree by some AC and the implementation of the
regulations regarding access to and costs of healthcare created a conflict of
competence, an administrative confusion and therefore inequality in access to care
depending on where someone lives, because the regions have 17 different health
systems.

Finally, many specialists in infectious diseases say that in practice they have real
difficulties in treating HIV positive patients who are migrants with irregular status, also
due to the lack of information of the administrative workers.

46
H. Legido-Quigley, ‘Erosion of universal health coverage in Spain’, The Lancet, 2013.
47
See Spain to allow illegal immigrant to access free public healthcare, www.telegraph.co.uk
48
S. M.J. CALDES, Controriforma sanitaria in Spagna. Nel mirino anche gli immigrati, 4/12/2012, avail . in:
http://www.saluteinternazionale.info/2012/10/controriforma-sanitaria-in-spagna-nel-mirino-anche-gli-immigrati/ (30/3,
2014).
116
Good practices

In addition to resident permits for humanitarian reasons, another good practice is that
civil society and many regions have a strong reaction to the Real Decree, and this has
force to move in order to change the status and to harmonize the different situations
in Spain.

In most cases the intervention of NGOs (CALCSICOVA, Médicos del Mundo, Mèdicos sin
Fronteras) is fundamental in helping migrants with irregular status49.

United Kingdom

Constitutional basis

The United Kingdom does not have a written Constitution and there is no right to
health as such, beyond the possible health-related implications of the European
Convention on Human Rights, which is enshrined in domestic law in the Human Rights
Act of 1998. The Human Rights Act established the principle of the precedence of
human right considerations in the development and implementation of policy and
practice in public services and allowed UK courts to make ruling on its applicability.

49
‘In Barcelona, for example, in 2006 a special “Plan for Immigration in the health care sector” was
issued, which expressly regulates the practices adopted to allow full protection of the right to health,
including that of the illegal immigrants living in the Catalan capital. The Barcelona City Council has
also entered into an agreement with a local non‐governmental organization (NGO) active in the field
of migration and health protection. The program identifies illegal immigrants who may not have
access to health care services and hospital treatment because of their inability to get a national
health card. The city tries to fill the absence of the national health service in the provision of medical
treatments for illegal immigrants.’: A. De Petris, Constitutional provisions and health care services for
illegal immigrants in some federal and regional EU member states: looking for best practices,
Working Paper 6/2014, Luiss Guido Carli, Dipartimento di Giurisprudenza, Roma;

117
Main characteristics of national health system

The United Kingdom’s health care system is called the National Health System (NHS); it
was established ( the first in the world) by the National Health System Act of 1946,
introduced two years later and subsequently amended by law.

Healthcare is a devolved matter in the United Kingdom meaning each of the four
nations have separate health laws and he NHS is managed separately in England (NHS
England), Scotland (NHS Scotland ), Wales (NHS Wales) and Northern Ireland Health
and Social Care Northern Ireland-HSCNI). They present some differences, but are
similar in most respects, including the approach taken to migrant healthcare access.

The Health Act 2009 established the NHS Constitution, which has some legal status in
England (afterwards reaffirmed by the Health and Social Care Act 2012 and the Care
Act 2014) and brings together the principles, values, rights and pledges of the NHS in
England. In Scotland, the Patient Rights Act includes similar content.

The NHS for each of the four nations is funded by the UK Government by central
taxation revenue composed of a combination of direct and indirect sources of taxation
(income tax, national insurance contributions paid by employees and VAT). The NHS is
intended to provide universal health coverage to all population in the UK on the basis
of clinical need, and (with few exceptions) is free at the point of use.

Access to NHS services for UK/EEA nationals those with permission to reside

118
As the NHS is not an insurance-based system, entitlement to services depends on
residency status.

Primary care is free to all residents, regardless of nationality or other immigration

status. Everyone who is present in the UK is entitled to register with a GP, and may
receive primary services free of charge. It is possible to be registered on a temporary
basis, for those who are present for 3 months or less. Most are liable for a fixed
prescription charge (£8.05 per item), but there are some exemptions (e.g. pregnant
women, children and people aged over 60 get free prescriptions).

Secondary care is free at the point of use for all people who are ‘ordinarily resident’ in
the UK. This is a test specific to NHS access and should not be confused with any other
residency test in immigration, tax or benefits law.

Ordinary residence has not been defined in law. In practice, in order to be considered
‘ordinarily resident’, the patient must be: “living lawfully in the United Kingdom
voluntarily and for settled purposes as part of the regular order of their life for the
time being”.50

It is possible for someone to be a UK citizen or permanent resident and not be found

to be ‘ordinarily resident’ – for example, a UK citizen who is resident in the USA and is
in London for a holiday. In this case, they may be considered a chargeable patient for
secondary care. Conversely, it is possible for someone who has recently arrived in the
UK to be considered ‘ordinarily resident’ – for example, an EEA national who has

50
The concept of settled purpose’ has been developed by the courts: “There must be an identifiable purpose for their
residence here, there can be one purpose or several, and it may be for a limited period. The purpose for living in the UK must
have a sufficient degree of continuity to be properly described as ‘settled’.”
119
recently moved to Birmingham to take up a job and is planning to live in the UK for the
foreseeable future.

The Immigration Act 2014, Section 39, which came into force on 6 April 2015,
introduced a partial definition of ‘ordinary residence’, to exclude all those who do not
have indefinite leave to remain in the UK. This includes those who need leave to enter
or remain but also those who currently living and working in the UK with limited leave
to remain (i.e. anyone who is subject to immigration control).

In addition, non-nationals who are subject to immigration control (visa – holders,

nationals of countries from outside the EEA) coming in the UK for longer than six
months, must pay a ‘health surcharge’ as a part of the visa application process, which
is intended as a contribution to the costs of their healthcare while they are resident in
the UK. This is additional to any taxes they pay while resident and it will also be paid by
third-country nationals already in the UK who apply to extend their stay.

The health surcharge (£ 200 per year and £ 150 per year for students) must be paid in
advance for each of the years covered by the relevant visa51.

Following payment of the surcharge, non-nationals may also access all NHS services for
free on the same basis as nationals who are ‘ordinarily resident’.

In summary, the following groups may access NHS secondary care for free:

1. Nationals/citizens who are ordinarily resident

2. non-nationals who are permanent residents (with indefinite leave to remain)
and who are ordinarily resident
3. non-nationals who have paid the NHS surcharge

51
A typical work visa is for up for 5years.
120
4. EEA nationals/citizens who are ordinarily resident
5. EEA nationals/citizens with an EHIC card for their country of residence
6. Asylum seekers with an open claim
7. Refugees (those whose asylum claim has been successful

Access to healthcare system for migrants with irregular immigration status

Primary care and accident and emergency are free of charge to all patients, so also
migrants with irregular status should have access to them and have the same
entitlements as other NHS patients.

The Secretary of State for Health (Health Minister) says that there is no formal
requirement to provide documentation when registering with a GP, and GPs receive
the same amount for overseas patients and for the other patients.

There is no minimum period that a person needs to have been in the UK before a GP
can register them.

‘Chargeable migrants’ (those who are not ordinarily resident and/or who have not paid
the migrant surcharge – this includes migrants with irregular status) will be asked to
pay directly for secondary care treatment.

The standard of care, access to clinicians, testing and medications are the same for all
patients regardless of migration status52.

52
Guidance issued to HIV clinics recommends that when patients is believed to be a short-term visitor they may be given
prescriptions of shorter duration (e.g. 1 month rather than 3), and asked to return the clinic within the time in order to have
further medication dispensed.
121
The NHS uses the terms ‘immediately necessary’ and ‘urgent care’ to describe
treatment which should never be denied or delayed due to charging concerns. This is
linked to human rights obligations. Migrants with irregular status may be billed for this
treatment and care after it is completed, however. The charge will be the standard
tariff for that service, as paid by NHS commissioners.

Certain types of treatment and care are always provided free to all patients, regardless
of residency status or whether they are subject to immigration control. This includes
testing and treatment for HIV and all other sexually-transmitted infections, as well as a
range of specified disease.53

In addition, there are some groups of migrants who are considered ‘vulnerable’ and
are therefore provided with free treatment. This includes victims of violence (FGM,
domestic violence), unaccompanied children in local authority care, disabled and
seriously ill adults in local authority care.

Prevention, testing, treatment and care of HIV/AIDS for migrants with irregular status

Since 1 October 2012, in recognition of the significant public health benefits54 from
ensuring universal access to HIV treatment (in addition to testing, which has always
been free), there has been free access to HIV treatment and care services in England
for everyone, regardless of residency status. Scotland introduced the same access in
law in 2014, and Northern Ireland followed in 2015.

53
Acute encephalitis; Acute poliomyelitis; Anthrax; Botulism; Brucellosis; Cholera; Diphtheria; Enteric fever (typhoid and
paratyphoid fever); Food poisoning; Haemolytic uraemic syndrome (HUS); Human immunodeficiency virus (HIV) Infectious
bloody diarrhoea; Invasive group; Invasive meningococcal disease (meningococcal meningitis, meningococcal septicaemia
and other forms of invasive disease); Legionnaires’ disease; Leprosy; Leptospirosis; Malaria;Measles; Mumps; Pandemic
influenza (defined as the “Pandemic Phase”) or influenza that might become pandemic (defined as the “Alert
Phase”);Plague;Rabies; Rubella; Severe Acute Respiratory Syndrome (SARS;) Smallpox; Tetanus; Tuberculosis; Typhus;
Viral haemorrhagic fever;Viral hepatitis; Whooping cough; Yellow fever
54
Adherence to HIV treatment reduces the risk of HIV transmission and therefore prevents new HIV infections.
122
In Wales, it is provided without charge in practice. Even if a patient in Wales could be
charged for HIV treatment, it should never be denied.

Welsh law also provides free healthcare of all kinds to refused asylum seekers (those
with appeal rights exhausted); in practice this may extend to other migrants with
irregular status.

Issues

The universal nature of the NHS and in particular the open-access model of sexual
health and HIV clinics facilitates treatment and care access for migrants with irregular
status. Irregular migrants may access HIV clinics directly, without the need to be
referred by a GP or hospital.

However, there is an increasing emphasis on pursuit of revenue from ‘chargeable’

migrants for other hospitals services, as part of a Government-wide attempt to create
a ‘hostile environment’ for migrants with irregular status55.

There is also a renewed attempt to recoup costs from other EEA member states for
non-HIV hospital treatment provided to EEA nationals who hold an EHIC card.

This is likely to lead to new barriers to access to EEA nationals who are not insured in
their home state or who cannot prove they are ordinarily resident in the UK and
exercising treaty rights.

55
In May 2014 , with the introduction of a new Immigration Act, came into force in April 2015, the Government expressly
stated that it was designed to make it ‘more difficult for illegal immigrants to live in the UK’. The Act intended to: introduce
changes to the removals and appeals system, making it easier and quicker to remove those with no right to be in the UK; end
the ‘abuse’ of Article 8 of the European Convention on Human Rights (the right to respect for family and private life; prevent
illegal immigrants accessing and ‘abusing’ public services or the labor market.
123
Moreover, while there is no duty for healthcare staff (neither to denounce to the
immigration authorities not) to check the entitlement for healthcare of the migrants
with irregular status, there is increasing evidence that immigration authorities attempt
to identify the whereabouts (in terms of region only) of migrants with irregular status
via their NHS access.

The British Medical Association has noted ‘considerable confusion about overseas
visitors ‘eligibility for NHS primary medical services; this is largely because of a lack of
clarity in the NHS regulations’.56 NHS England has recently published clarification on
universal free entitlement to GP registration.57 However, in the same month, the
Department of Health announced a public consultation on the possibility of charging
migrants with irregular status for A&E and certain primary healthcare services.58

Migrants with irregular status are often without a legal source of income and many
find difficulty in affording prescribed medications and the cost of secondary care and
of the hospitals bills and the state of NHS is desperate and it is about to collapse.

Good practices

The National AIDS Trust, (as well as other NGOs) successfully campaigned to exempt
HIV treatment and care from charges (in 2012) and to ensure that GP consultations are
exempt from any future extension of charging in primary care (in 2013)..

56
See BMA, General Practitioners Committee, Overseas Visitors- Who is eligible for NHS Treatment, London, 2006, p.1;
57
https://www.england.nhs.uk/commissioning/wp-content/uploads/sites/12/2015/11/pat-reg-sop-pmc-gp.pdf
58
https://www.gov.uk/government/consultations/overseas-visitors-and-migrants-extending-charges-for-nhs-services
124
5) European case law

Below is a brief review of interesting cases of the European Courts and of the
European Committee of Social Rights.

European Court of Human Rights (ECtHR)

As it is known, the Court pronounces itself on individual or state appeals inherent to

alleged violations of civil and political rights established by the European Convention of
Human Rights.

The Court’s sentences are binding for the interested states that must modify legislation
and their administrative praxis to conform to the Court’s decision.

As mentioned, the ECHR does not contain an Article particularly dedicated to health
but ‘indirectly’ protect the right to healthcare by Articles 2, 8 and 3 (right to life, right
to respect for private and family life and prohibition of torture and inhuman or
degrading treatment or punishment), and developed a rich case law on the influence
of the medical state of an applicant and the individual possibilities of return to his/her
country of origin, approaching this issue from the perspective of the rights granted by
the ECHR in the abovementioned Articles.

The ECtRH has therefore found on many occasions that considering States’ obligations
to make healthcare available to the whole population, their acts and omissions
regarding healthcare policy engage their responsibility.

125
On denial of healthcare (violation of Article 2 ECHR) see:

-Application N. 45305/99, Powell v. UK, decision 4 May 2000;

-Application N. 65653/01 Nitecki v. Poland, decision 21 March 2002;

-GC Cyprus v. Turkey, 10 May 2001,§ 219;

-GC Öneryldiz v. Turkey, 30 November 2004, § 71, 90, 94-96.

The right to respect for private life (Article 8 of ECHR) includes the right to physical and
moral integrity and therefore can be invoked if removal from the country would cause
acute physical and mental suffering. Unlike Article 3 of the ECHR, however, this right is
not absolute nor is it subject to proportionality. The Article allows the contracting
states to interfere with the right if in accordance with the law and necessity of a
democratic society. The threshold for an Article 8 of the ECHR claim on medical
grounds is equally high as for an Article 3 of the ECHR claim. Normally the European
Court of Human Rights does not raise separate issues under Article 8 of the ECHR when
assessing applications against expulsion on medical grounds59.

On violation of Article 3 ECHR see:

-Application N. 46553/99 SCC v. Sweden, in which the Court recalls that “at the outset
that Contracting States have the right, as a matter of well-established international law
and subject to their treaty obligations including the Convention, to control the entry,
residence and expulsion of aliens. However, in exercising their right to expel such aliens
Contracting States must have regard to Article 3 of the Convention, which enshrines
one of the fundamental values of democratic societies. The Court has repeatedly
stressed in its line of authorities involving extradition, expulsion or deportation of
individuals to third countries that Article 3 prohibits in absolute terms torture or
inhuman or degrading treatment or punishment.”

59
See Undocumented And Seriously Ill: Residence Permits For Medical Reasons In Europe, PICUM, Brusseles,
2009, p. 14.
126
-In Application N. 30240/96 D. v. the United Kingdom, the Court established a broad
interpretation of Article 3.

The applicant was in an advanced stage of AIDS and his short life expectancy was
contingent on the continuation of the medical treatment available to him in the UK. He
was close to death and had formed a bond with the care providers who supported him
through the end of his life. As he did not have any familiar, social or other support in
his country of origin, St Kitts, where the adequate medical treatment for his illness was
not available, the ECtHR held that his deportation would violate Article 3.

“… the Court must reserve to itself sufficient flexibility to address the application of that
Article (Art. 3) in other contexts which might arise. It is not therefore prevented from
scrutinising an applicant's claim under Article 3where the source of the risk of
proscribed treatment in the receiving country stems from factors which cannot engage
either directly or indirectly the responsibility of the public authorities of that country, or
which, taken alone, do not in themselves infringe the standards of that Article (Art. 3).
To limit the application of Article 3 in this manner would be to undermine the absolute
character of its protection. In any such contexts, however, the Court must subject all
the circumstances surrounding the case to a rigorous scrutiny, especially the applicant's
personal situation in the expelling State.

Against this background the Court will determine whether there is a real risk that the
applicant's removal would be contrary to the standards of Article 3 in view of his
present medical condition. In so doing the Court will assess the risk in the light of the
material before it at the time of its consideration of the case, including the most recent
information on his state of health.”(§ 49)

127
 60
This case - quite the only case where the ECtHR found the circumstances sufficiently exceptional to
conclude that the applicant’s removal would be contrary to Article 3 - contrasts with subsequent
medical asylum cases where the ECtHR found that the circumstances of the applicants were not
sufficiently distressing for an issue under Article 3 to arise if they were expelled.

About this, see

-Application N. 26565/05, N. v. the United Kingdom, in which the Court, in a

situation relating to the expulsion of a person with a HIV and AIDS-related condition,
stated that "[a]liens who are subject to expulsion cannot in principle claim any
entitlement to remain in the territory of a Contracting State in order to continue to
benefit from medical, social or other forms of assistance and services provided by the
expelling State. The fact that the applicant's circumstances, including his life
expectancy, would be significantly reduced if he were to be removed from the
Contracting State is not sufficient in itself to give rise to breach of Article 3.

The decision to remove an alien who is suffering from a serious mental or physical
illness to a country where the facilities for the treatment of that illness are inferior to
those available in the Contracting State may raise an issue under Article 3, but only in a
very exceptional case, where the humanitarian grounds against the removal are
compelling." (§42)

-Application N. 34724/10 E.O. v. Italy, the case regards the appeal against the order
of expulsion made by a Nigerian woman affected by HIV illegitimately present on the
Italian territory. The Court, recalling one of its previous ruling, (N. v. United Kingdom
Application n. 26565/05) declared the appeal clearly unfounded and explained its
refusal to accept it on the grounds that the health condition of the subject had been
stabilized thanks to the treatment received in Italy thus her expulsion was not contrary
to Art. 3 since it was not characterized by urgent humanitarian considerations.

60
But see also BB v. France (9 March 1998, RJD 1998-VI, p. 2596) where the Commission found that the deportation of a
national from the Democratic Republic of Congo whose HIV/AIDS illness had stabilized due to the therapy he was receiving
would amount to a violation of Article 3 ECHR, since adequate medical treatment and family support were unavailable in his
country of origin.
128
-Application no. 70055/10 S.J. v. Belgium.
The case, originated in the Belgian Alien Office’s decision, to expel Ms S.J., a Nigerian
young mother. Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a
serious immune system deficiency requiring antiretroviral treatment. She was closely
monitored for the following years and as a result her state of health was stabilized. As
she had no realistic prospect of obtaining access to the appropriate medical treatment
in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate
Article 3 of the ECHR since it would expose her to a premature death in conditions of
acute physical and mental suffering. On 27 February 2014, relying on the principle
established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not
breach Article 3.

In his dissent to the Grand Chamber decision, Judge Pinto de Albuquerque strongly
criticized the ECtHR’s approach in medical asylum cases and called upon the Court to
revisit, after six years, the ‘unfortunate principle’ laid down in N. v. UK.

In these last three cases the applicants’ situations were distinguished from D. v. UK on the basis that
their illness had not reached a critical stage or that family members could take care of them in their
country of origin.
It appears from this case law that the expulsion of seriously-ill aliens may only raise an issue under
Article 3 where their illness is so advanced that their death is imminent. As long as their health condition
is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a
relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state,
even though this circumstance would most likely cause the applicant’s premature and painful death.
It is to be hoped that the ECtHR will align its medical asylum case law with the protective standard of
Article 3 as elaborated in other removal cases.

However, recently the Court has pronounced a very interesting judgment.

-Application N. 2700/10 Kiyutin v. Russia.

In this case the Court held that Russia could not deny a residence permit to an
individual solely because of this HIV positive status.

129
The case is significant not because of its particular outcome, but for establishing much-
needed precedent. Ensuring protection against discrimination to persons in poor
health affects a substantial population around the world; this opinion represents a
significant step forward for the particularly ostracized population infected with
HIV/AIDS.

With the newfound protection under the ECHR granted by the Kiyutin Court, HIV-
positive individuals are stringently protected against differential treatment that results
from their health status. A broad reading of the ECHR extends this much-needed
protection to virtually all realms of life and grants significant political influence across
the world.

As a result of the Kiyutin opinion, the HIV-positive population, previously a severely

disadvantaged group, gains some legal protection and support in the international
community61.

European Union Court of Justice (ECJ)

The Court guarantees the respect of the EU regulations and monitors the
interpretation and application of the founding treaty of the UE. The Court has always
protected health matters in an ancillary and indirect way.

Migrants suffering from life-threatening conditions are not only sometimes excluded from the
protection of Article 3 ECHR, but also from the protective regime granted to refugees and persons
otherwise in need of international protection by the EC Directive 2004/83/EC.
In M’Bodj v. Belgian State (C-542/13) the Belgian Constitutional Court requested a preliminary ruling by
the ECJ on the question whether aliens suffering from a serious health condition should be included in
the category of persons protected by the Directive 2004/83/EC.

61
S. Levitan, Kiyutin: Protecting the Human Rights of Person Living with HIV/AIDS Beyond Immigration, Boston College
International and Comparative Law Review, 35, 49 (2013);
130
The ECJ ruled that "None the less, the fact that a third country national suffering from a
serious illness may not, under Article 3 ECHR as interpreted by the European Court of
Human Rights, in highly exceptional cases, be removed to a country in which
appropriate treatment is not available does not mean that that person should be
granted leave to reside in a Member State by way of subsidiary protection under
Directive 2004/83. In the light of the foregoing, Article 15(b) of Directive 2004/83 must
be interpreted as meaning that serious harm, as defined by the directive, does not
cover a situation in which inhuman or degrading treatment, such as that referred to by
the legislation at issue in the main proceedings, to which an applicant suffering from a
serious illness may be subjected if returned to his country of origin, is the result of the
fact that appropriate treatment is not available in that country, unless such an
applicant is intentionally deprived of health care."

Conversely, the Luxembourg Court, in another judgment delivered on the very same
day, adopted a markedly broad interpretation of Articles 5 and 13 of Directive
2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning illegally staying
third-country nationals.

In Centre Public d'Action Sociale d'Ottignies-Louvain-La-Neuve v. Moussa Abdida (C-

562/13), it criticized national legislation that did not endow with suspensive effect an
appeal against a decision ordering a third country national suffering from a serious
illness to leave the territory of a Member State, where the enforcement of that
decision might expose that third country national to a serious risk of grave and
irreversible deterioration in his state of health, and did not make provision, in so far as
possible, for the basic needs of such a third country national to be met, in order to
ensure that emergency health care and essential treatment of illness were in fact
made available during the period in which that Member State was required to
postpone removal of the third country national following the lodging of the appeal.

Consequently, Member States are required to provide the basic needs of a third
country national suffering from a serious illness who has appealed against a return

131
decision whose enforcement may expose him to a serious risk of grave and irreversible
deterioration in his state of health.

This contradictory approach of the Luxembourg Court reflects the current

contradiction in the Strasbourg Court's case law itself, which has simultaneously
sustained an unreasonably restrictive interpretation of the Article 3 substantive
guarantee, (i.e. N. v. the United Kingdom), and a reasonably broad procedural
interpretation of the right to an effective remedy as elaborated in other removal cases
(Application n. 27765/09 Hirsi Jamaa and Others v. Italy, Application n. 22689/07 De
Souza Ribeiro v. France)62.

The situation of illegal migrants suffering from a life-threatening condition is very precarious. However,
rather than extending the protective scope of human rights and EU law to afford a minimum level of
protection to those vulnerable people, sometimes the ECtHR and the ECJ have accepted that European
member states have the right to deport them even where such a course of action would in all likelihood
bring about their death in dire conditions.

European Committee of Social Rights (ECSR)

The protection of health, stated in Article 11 of ESC(r), as we have seen, is connected

to the right to life and the prohibition of torture and inhuman or degrading treatment
or punishment state by the European Convention on Human Rights (ECtHR) in Article 2
and 3.

The ECSR has repeatedly ruled on the interpretation of Article 11 of the ESC(r).

In FIDH (International Federation of Human Rights) v. France, the ECSR stressed the
connection between the right to healthcare and the fundamental value of human
dignity, stating that the protection of health is a “prerequisite for the preservation of
human dignity”.

62
In these terms, the opinion of Judge Pinto de Albuquerque in the ECtHR’s case S.J. v. Belgium.
132
Moreover, ECSR believes that Article 11. 1 concerning the obligation to remove as far
as possible the causes of ill-health establishes the right to the highest possible
standard of health for the population according to existing knowledge, and the right to
an effective access to healthcare, that should be extended to non-nationals without
distinction63.

The European Committee of Social Rights, in a case related to State Medical AID in
France, states that "a practice or a legislation who denies the right to a medical
assistance for migrants, on the territory of a member State, even if they are in irregular
situation, is contrary to the Chart".

The right to access to healthcare has been interpreted as requiring that the cost of
healthcare should not constitute an excessive financial burden for individuals.

The European Committee of Social Rights, in November 2014, in a case concerning

Spain, states that “the economic crisis cannot serve as a pretext for a restriction or
denial of access to healthcare that affects the very substance of the right of access to
healthcare”.

This means that States have the obligation to provide assistance to citizens regardless
of their residence status.

Pursuant to Article 11.2 of ECS(r), States have to provide advisory and educational
facilities for the promotion of health and the encouragement of individual
responsibility in matter of health. In the interpretation of the ECSR this means that
Sates have an obligation to raise awareness trough education, information and

63
See ECSR, “Conclusions 2004”, ‘General introduction’, pp. 10.
133
participation of the public, and to carry out screening and provide counselling, through
the possibility of free and regular consultations and medical checks 64.

As for the third obligation that the ESC(r) imposes (Article 11.3) in terms of the right to
protection of health, ECSR has also established a series of measures that parties are
65
required to take and also checks whether specific awareness activities concerning
migrants66.

6) Conclusions

Health care procedures are quite heterogeneous among the participating countries.

Migrants with irregular status usually receive the same health services as nationals.
However, the conditions of access to these services may vary, depending on the
country.

In other cases, although the law provides comprehensive health coverage to migrants
with irregular status, there are also many gaps between what the law says and its
implementation, especially at local level.

In short, this work provides to evidence that access to healthcare for migrants with
irregular status is not completely guaranteed in any of the examined countries.

At the same time, the right to healthcare, as we have seen, is a basic social right,
protected and recognized to everyone by various international instruments ratified by
various European countries, regardless of administrative status. This present a paradox
64
See ECSR “Conclusions 2009”, German and Denmark, pp84-85.
65
See ECSR “Conclusions 2009”, German and Denmark, pp85-88
66
See ECSR “Conclusions 2007” Ireland.
134
for healthcare providers: if they provide care, they may act against legal and financial
regulation; if they don’t’ provide care, they violate human rights and exclude the most
vulnerable persons.

This paradox cannot be resolved at a practical level, but must be managed such that
neither human rights nor national regulations are violated.67

In every State, civil society, NGOs and some healthcare professionals, who mostly work
as volunteers, play a significant role in helping migrants with irregular status to know
their rights and to provide assistance and support to them, and to get access to health
care, but the responsibility in providing healthcare rests on each national government.

The climate of repression and xenophobic pressures68, which find fertile ground in the
terrible recent acts of terrorism, are the major obstacles in complying with
international human right obligations.

67
C. Björngren Cuadra Policies on Health Care for Undocumented Migrants in EU27, Health Care in NowHereland,
improving services for undocumented migrants in the EU, Country Report, Poland, , April 2010, p. 3.

68
See the latest amendments to the Hungarian Health Care Act regarding mandatory screening. This
amendment came into force 28, October 2015 in relation to the legislative changes regarding the
refugee crisis enacted in September, 2015. One of these amendments introduced the notion of crisis
situation caused by mass immigration, which was declared for six counties of Hungary in September,
2015. This is still in force. The new provisions of the Health Care Act authorize the chief medical
officer (head of healthcare management) to order certain screenings mandatory for asylum seekers
during a crisis situation caused by mass immigration and in other healthcare crisis situations.
However, the same amendments also declare this authorization almost unnecessary when setting
out that if the crisis situation caused by mass immigration is declared on almost any ground, there is
no need for the chief medical officer order. These "certain screenings" - the law is not specified
further - take place at a location assigned by the asylum authority. If the asylum seeker is in the
transit zone, the screening shall be carried out before entering the territory of Hungary if entrance
permit is granted. The chief medical officer has not publicly declared any screening mandatory.
Therefore, there is little room for advocacy at the moment on national level.

135
A recent Italian study69 proves the existing deep correlation between cultural and
political attitudes towards foreign presence and the level of the access to healthcare
for the migrants with irregular status; the level of healthcare access is lower where
higher is the consent to xenophobic parties.

Another objection often move is the cost of the healthcare services for migrants with
irregular status. Although economic considerations cannot be used to justify a lack of
compliance with fundamental rights, cost effectiveness is one important issue in the
debate on access to healthcare for migrants with irregular status.

Moreover, it has recently been published an interesting research70 that shows that is
more cost-saving for healthcare systems to provide regular access to healthcare than
to limit access of migrant in an irregular situation to emergency healthcare only.

Finally, some policy makers and health professionals fear that greater access to
healthcare would represent a pull factor for migration and on the contrary believe that
restrictive health policies might help enforce restrictive migration policies. Conversely,
several studies show that the number of ‘medical refugees’ is very small71.

In particular, migrants with irregular status continue to face many barriers in accessing
HIV/AIDS prevention and treatment.

69
A. Rosano A. Spagnolo, Access to health services of undocumented migrants and xenophobic attitudes in EU countries, 4 th
Conference on Migrant and Ethnic Minority Health in Europe, 21-23 June 2012, Milan.
70
FRA European Union Agency for Fundamental Rights, Cost of exclusion from healthcare The case of migrants in a
irregular situation, 2015. The results of the research show that, in case of hypertension and prenatal care, the governments
would save money by providing access to primary regular preventive healthcare to migrants in a irregular situation.
71
Parliamentary Assembly Council of Europe, Migrants and refugees and the fight against AIDS, Doc.
13391 , 22 January 2014 and documented cited.

136
Insurance- based systems (France, Germany, Hungary, Netherland, Poland, Serbia)
seem to mean, at least in practice, less access to free HIV treatment, in comparison to
direct taxation/national health systems (Italy, Spain, before the Royal Decree Law
16/2012, and UK). Greece is a combination of the two systems.

Health care professionals point out that it is absolutely imperative to ensure adequate
information to the interested population, in order to allow migrants with irregular
status to have access to health care treatments.

Social and language barriers result in lack of awareness and stigma. Legal, financial and
administrative barriers result in delayed diagnosis, fear of seeking treatment and
higher HIV-related morbidity and mortality72.

This can lead to serious problems not only for the health of individuals but also for
public health.

Therefore, to bridge this gap States should:

- comply with international obligations at legislative level, reviewing and/or revising

their (national and regional) legislation, and adopting a human right-based approach to
healthcare and to fighting HIV/AIDS;

- ensure that information about the entitlements of migrants with irregular status to
care and treatment is accessible to migrants with irregular status themselves and to
healthcare providers;

72
Parliamentary Assembly Council of Europe, Migrants and refugees and the fight against AIDS, Doc.
13391 ,22 January 2014.

137
- abolish every kind of duty to denounce for the healthcare providers, or public
officials, which makes de facto not usable the right to healthcare for fear of
deportation;

-protect seriously ill foreigners, even migrants with irregular status, from deportation
granting an effective permit to stay when they are unable to receive effective access to
treatment in their country of origin, including in domestic law that notion;

- eliminate or reduce the cost of services;

- simplify administrative procedures for access to healthcare services;

-ensure privacy and autonomy of every patient.

Finally, Judge Pinto de Albuquerque’s notable dissenting opinion73 in the ECtHR’s case
S.J. v. Belgium, and also the Application N. 2700/10 Kiyutin v. Russia, gives some hope
that the right of healthcare may find effective protection at least in the European
Courts.

73
“Six years have passed since the N. judgment. When confronted with situations similar to that of N., the Court
has reaffirmed its implacable position, feigning to ignore the fact that the Grand Chamber sent N. to her death.
Too much time has elapsed since N.'s unnecessary premature death and the Court has not yet remedied the
wrong done. I wonder how many N.s have been sent to death all over Europe during this period of time and how
many more will have to endure the same fate until the "conscience of Europe" wakes up to this brutal reality and
decides to change course. Refugees, migrants and foreign nationals are the first to be singled out in a
dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs
whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the
Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and
painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death,
have no one to plead for them”.

138
The lowering of the very high gravity threshold required for Article 3 to be engaged in medical asylum
cases could have an impact also on the ECJ’s interpretation of serious harm under Directive 2004/83/EC
and 2008/115/EC and on the domestic law of Convention states.

7) Author:
European HIV Legal Forum (EHLF), November 2015

Gaia Inverardi, lawyer in Milan

Contributors:
Richard Stanz, Nicolas Klausser, AIDESs, France
Tanja Gangarova, Deutsche AIDS-Hilfe e V., Germany
Marianella Kloka, Apostolos Kalogiannis, PRAKSIS, Greece
Rita Bence, Stefánia Kapronczay, Hungarian Civil Liberties Union, Hungary
Lella Cosmaro, LILA Milano ONLUS, Italy
Jasper van Amen and Ronald Brands, National Health care Institute and Soa Aids
Nederland , the Netherlands
Wojciech Tomczynski, SIEC PLUS, Poland
Nenad Petkovic, Q-CLUB, Serbia
Ramón Espacio, CALCSICOVA, Spain
Sarah Radcliffe, NAT (National AIDS Trust), UK
Michael Krone and Ferenc Bagyinszky, AIDS Action Europe
A special thanks to Paulette Brombard

8) Bibliography:

-MdM International Network, Legal report on access to healthcare in 12 countries, 8th

June 2015;
-Discrimination, Denial, and Deportation, Human Rights Abuses Affecting Migrants
Living with HIV, Human Rights Watch, 2009;
139
-I. Butler, Background paper, Open Society European Policy Institute, February 2013;
-Trattati dell’Unione Europea, a cura di Antonio Tizzano, Le Fonti del Diritto Italiano, II
edizione, Giuffrè Editore;
-M. Crivellini, M.Galli, Sanità e salute, due storie diverse, Sistemi sanitari e salute nei
paesi industrializzati, p. 272, Franco Angeli, 2011;
-Undocumented and Seriously Ill: Residence Permits for Medical Reasons In Europe,
Brussels, PICUM, 2009;
- C. Economou, Greece: health system review, Health system in transition, 2010, vol
12, n. 7;
-Naga, Health is (not) permitted. Survey on access to health care for undocumented
migrants in hospitals in Milan, from January 9, 2014 to February 28, 2015;
-A. De Petris, Constitutional provisions and health care services for illegal immigrants in
some federal and regional EU member states: looking for best practices, Working
Paper 6/2014, Luiss Guido Carli, Dipartimento di Giurisprudenza, Roma;
-Letter from the National Ombudsman to the Secretary of State for Security and
Justice, 4 September 2013;
-Report further to a complaint against the Medical Advisors Office, BMA, National
Ombudsman, 19 March 2015;
-Spain to allow illegal immigrant to access free public healthcare,
www.telegraph.co.uk;
-H. Legido-Quigley, ‘Erosion of universal health coverage in Spain’, The Lancet, 2013;
-S. M.J. CALDES, Controriforma sanitaria in Spagna. Nel mirino anche gli immigrati,
4/12/2012, http://www.saluteinternazionale.info/2012/10/controriforma-sanitaria-in-
spagna-nel-mirino-anche-gli-immigrati/ (30/3, 2014);
-S. Levitan, Kiyutin: Protecting the Human Rights of Person Living with HIV/AIDS
Beyond Immigration, Boston College International and Comparative Law Review, 35,
49( 2013);
-C. Björngren Cuadra, Health Care in NowHereland, Improving services for
undocumented migrants in the EU, Policies on Health Care for Undocumented
Migrants in EU27, Country Report Poland, April 2010;
Luglio 2013;

140
-A. Rosano A. Spagnolo, Access to health services of undocumented migrants and
xenophobic attitudes in EU countries, 4th Conference on Migrant and Ethnic Minority
Health in Europe, June 21-23 2012, Milan;
-FRA European Union Agency for Fundamental Rights, Cost of exclusion from
healthcare The case of migrants in an irregular situation, 2015;
-Health Care in NowHereland, Improving services for undocumented migrants in the
EU, Policies on Health Care for Undocumented Migrants in EU27: Towards a
Comparative Framework, Summary Report, Carin Björngren Cuadra, July 2010;
-EuroHiv Edat- Aides, Synthesis- National Reports;
-Organization for Ecomomic Co-operation and Development. Report by the Global
Commission on International Migration OECD, in Access to healthcare for
undocumented migrants in Europe, Brussels, PICUM, 2007;
-Local authorities, health professionals and NGOs call on German government to
change law on reporting undocumented migrants, htt://picum.org/en/news/picum-
news/48359;
-L’accesso alle prestazioni sanitarie per gli i presenti sul territorio italiano. Il nucleo
irriducibile dei diritti fondamentali rende irrilevante la distinzione tra immigrato
regolare e immigrato irregolare, www.lavocedeldiritto, 11 febbraio 2015;
-Health Systems in Transition, Vol. 13 No. 8 2011, Poland Health System Review,
European Observatory on Health Systems and Policy;
-HUMA Network, Are undocumented migrants and asylum seekers entitled to access
health care in the EU?, A comparative overview in 16 countries, November 2010;
-We’re Treating Them As Homeless: Health Care Access for Undocumented Migrants in
Poland, B. Larson, P. Sypniewska, www.humanityinaction.org;
-A.Gavrilović – S. Trmčić, Health Isurance System in Serbia – Quality, Reform, Financial
Sustainability;
-British Medical Association BMA, General Practitioners Committee, Overseas Visitors-
Who is eligible for NHS Treatment, London, 2006;
-Protecting Migrants under the European Convention on Human Rights and the
European Social Charter, A handbook for legal practitioners, Y. Ktistakis, Council of
Europe Publishing, 2013;

141
-Parliamentary Assembly Council of Europe, Migrants and refugees and the fight
against AIDS, Doc. 13391 , January 22 2014;

-A. Spagnolo, Il diritto alle cure degli stranieri irregolari, Salute Internazionale, 4

-Health Care for Undocumented Immigrants: A View from Europe, NESRI Media Center;
-J. Close, Human rights outcasts: seriously-ill migrants as beyond the reach of European
protective legal regimes, April 20, 2015, International Law Blog;

-The protection of seriously ill migrants and the “unfortunate principle” of N.v. the
United Kingdom, www.ein.or.uk, March 19 2015;

-B. Catallo, Il diritto alla salute nel contest delle migrazioni e la protezione sussidiaria:
l’orientamento della Corte di giustizia dell’Unione europea nella sentenza n. c-542/13
del 18 dicembre 2014.

142
Annex 6 – Minutes of the EHLF project meeting in Berlin

AGENDA – EUROPEAN HIV LEGAL FORUM MEETING,

5 & 6 OCTOBER 2015; BERLIN – AIDS ACTION EUROPE

Participants:

Representative Organisation Country

Rita Bence HCLU Hungary
Ronald Brands SOA Aids Nederland The Netherlands
Lella Cosmaro LILA Milano Italy
Ramón Espacio CALCSICOVA Spain
Tanja Gangarova Deutsche AIDS Hilfe Germany
Nicolas Klausser AIDES France
Marianella Kloka – PRAKSIS Greece
Apostolos Kalogiannis
Nenad Petkovic Q-Club Serbia
Sarah Radcliffe National AIDS Trust United Kingdom
Wojciech J. Tomczyński SIEĆ PLUS Poland

Michael Krone Executive coordinator AIDS Action Europe

Ferenc Bagyinszky Project manager AIDS Action Europe
Gaia Inverardi Legal expert Italy

Apologies:

Representative Organisation Country

Richard Stranz AIDES France

Monday, October 5, 2015

Timeframe AGENDA POINT Facilitator

9.30 – 09.45 Opening and welcome by AAE AAE Office

143
 Round of introduction
House rules, logistics information

09:45 – 10:30 Progress report from AAE Office + QA Ferenc

10:30 – 11:00 COFFEE BREAK
11:00 – 12:30 Country reports and updates Policy focal points
+ Report on the situation at the Hungarian-Serbian
border (Rita and Nenad)

12:30 – 14:00 LUNCH AND PHOTOSHOOT

14:00 – 15:30 Upcoming activities Ferenc

15:30 – 16:00 COFFEE BREAK

16:00 – 17:00 Upcoming activities continued + Reimbursement

JOINT DINNER

Opening

Michael and Ferenc welcome the participants and suggest a round of introduction as some
new members have or are joining the EHLF network: Rita Bence from Hungary, Nicolas
Klausser from France and Apostolos Kalogiannis from Greece.

After some information regarding logistics the agenda is approved. Gaia Inverardi, the legal
expert that is working on the final report will join the meeting later. The first day of the
meeting is dedicated to a report regarding EHLF activities and country reports and discussion
on emerging issues.

EHLF activities

Ferenc summarizes the activities so far in 2015. Some tasks were started and completed
with delay but the office believes that we can complete the project by the end of the year.
On work package activities: most of the tasks of national focal points were completed,
special thanks for sending the national questionnaires back in time for the final report. WP2
and 3 have some tasks that still need some thinking and completion that will be addressed
during the second day.

National reports and updates since the last meeting (December 2014)
United Kingdom – Sarah Radcliffe (National AIDS Trust)

Following the English/Welsh examples, Scotland and Northern Ireland also changed their
laws, providing access to ARVs for undocumented people. However, in England they are

144
stricter in following the rules. Most people cannot pay their hospital bills, maternity care for
instance, but they are encouraged to apply for a payback scheme. NHS chases people and it
is getting more and more ridiculous. There were parliamentary elections in May. UKIP chose
the topic of HIV treatment and migration in the elections. Luckily the general public reaction
was kind of good in terms of migrants’ access to public health. After the elections, however,
public speech became tougher on immigration: housing, drivers licences, etc. Asylum crisis is
fuelling up this new agenda. There is a different law on registration already. The state of NHS
is desperate it is about to collapse.

The Netherlands – Ronald Brands (SOA Aids Nederland)

In the Netherlands the estimated number of undocumented migrants is around 100.000.

Some health care services provide treatment and care and later the health care services
apply for compensation. Since October 1st Hep C DAAs are accessible without limits and they
are fully covered based on the decision of the physician.

Poland – Wojciech J. Tomczyński (SIEĆ PLUS)

The refugee problem is used as an election item. Elections are on October 25. Poland is a
transit country for refugees. Medical care for HIV is regulated by the national HIV
programme. Over 80 million is spent, mainly on treatment. Access to treatment is only
provided in emergency cases. We should advocate through CSF specifically that Ukraine is
not a safe country. We should advocate for Ukraine refugees.

Group discussion on the Ukrainian situation: There are many requests in Italy, same in
Germany (no official data) but at the moment coming from the Ukraine is not a reason for
accepting one´s claims regardless of HIV-status. In France 1000 Ukrainians applied for
asylum, only 20 have received it. There is a need to clarify the situation in different
countries: perhaps case studies of 2-3 European countries + a country report from the
Ukraine could provide a basis of advocacy.

Serbia – Nenad Petkovic (Q-Club)

Health care is connected to any regular residence in the country and is based on national
health insurance that is provided through employment or family status. There is universal
coverage for people who are in the system. HIV positive status is a ground for health
insurance for people with regular residence including asylum seekers. VCT centres are
accessible for anybody (anonymous). In 2015 there has been a substantial change in the
migrant situation. Serbia is still a country of transition. Out of 120,000 refugees only 6,000
applied for asylum. The state provides facilities for registration including health services.
Now, that the border is closed to Hungary and lately Croatia there are many people “on the
road” in Serbia. They do not want to use refugee facilities but prefer to be “on the roads”
close to the bus stations etc. The response from the government was to provide
humanitarian services, but procedures are not developed yet. There is a positive attitude
towards refugees in the general public and also from the government’s side. Serbia does not
145
state a quota on the number of refugees but would accept any numbers. There are
discussions about definition of migration and migrant populations. Serbia received some
funds from the EU to help handle the situation.

France - Nicolas Klausser (AIDES)

There is no official data on irregular migrants. The health care system provides access for
asylum seekers. In March 2015 the national agency conducted a research on HIV. Only 5 %
know their status. Resident permit on terms of the medical condition is possible. Prefectures
made their own investigations. The existence of treatment in the country of origin can be a
reason for rejecting applications. 30.000 people have a permit based on a medical reason,
16.000 of them are due to HIV.

Spain - Ramón Espacio (CALCSICOVA)

There is no data at all on irregular migrants. There used to be universal access until 2012. A
special health card was issued that is only valid in the region of issuing. The law was changed
so now there are regional differences in access. The regions have 17 different health
systems. Health cards were withdrawn. Regional elections have brought changes again.
December 20, 2015 there are national elections. Hopefully the previous situation will be
restored (universal access). The new government expect 30.000 health cards to get
distributed. In the real world, you can find a solution to access medication and care. EU
citizens and students are in a different situation.

Discussion: Chronic disease issue when people don’t work. Future work should focus on
Roma population mainly from Romania and Bulgaria. Even with universal access, you had
limits in regard of having an address.

Italy – Lella Cosmaro (LILA Milano)

Nothing really changed in the last months. There is almost universal access with regional
differences. Health care is decentralised. Some regions are doing well in taking care of
migrants. Lombardy has the most restrictive system within the country. There is a declining
number of asylum seekers. Migration usually takes place for political and economic reason.
Migrants coming to Italy are mostly from Africa. Italy is more very vocal on migration issues,
although out of 570.000 migrants “only” 200.000 arrived in Italy and the rest in Greece. The
main countries of origin are Eritrea and Nigeria. There are about 100.000 people waiting,
although now the procedures are a bit faster. In 2014, 44 % of applications were accepted.
The lowest number is Hungary with 9 %, while Sweden accepted 77 %. Most of the Syrian
people were accepted in 2014. Only in the Milan area they found 215 cases were badly
attended. The people do not know their rights. The health care workers are badly informed
as well. Migration is one of the major issues of politics. Mare nostrum and Triton operations
are still in place. STI treatment is not free of charge. No person with HIV has been deported
as far as CS knows.

146
Greece – Marianella Kloka and Apostolos Kalogiannis (PRAKSIS)

400.000 people passed through Greece in 2015. In regard of access to treatment, nothing
really changed. There is no STI screenings. The principle of lack of access to treatment in the
country of origin is not so easy to apply. The national medical situation needs to be
stabilised. There has been no deportation of HIV positive people so far. Unemployed people
and undocumented migrants are often in the same situation they have limited access. With
the last elections there were some radical changes, one of the very few issues where good
results are to be seen. It has become easier to acquire Greek citizenship. Legislation on
mandatory testing was abolished. Migrant children up to 18 and pregnant women have
universal access including free HIV treatment.

Hungary – Rita Bence (HCLU)

Legal environment hast not changed yet. There is a proposed bill on mandatory HIV, syphilis
and Hepatitis testing of migrants. There is only free access for emergency cases which
include enlisted, including immunological condition that can deteriorate health in the long
term or is life threatening. Still in the view of the ministry it does not apply to HIV as there is
no emergency. There is no ministry of health but a state secretariat within the ministry of
human resources. People with special needs and unaccompanied children may receive
further care. Sometimes the legal framework is OK but the practice is awful. In 2014 there
were 66.000 undocumented migrants, in 2015 by the end of September 300.000 is
estimated. During the refugee crisis most services were provided by civil society. According
to the chief medical doctor there is no danger of pandemic. 95 % of the tests performed are
negative for any infectious disease (hep B and C, HIV and syphilis), still the government
stated that there are health threats and proposed the bill on mandatory testing.

Discussion: Could the CSF react on the proposed bill similar to the Czech case in May?

Germany – Tanja Gangarova (DAH)

In Germany there are three different “people”: 90% of lawfully registered are health insured.
For asylum seekers and “tolerated” persons (people whose deportation have been
suspended) HIV care and medication is covered. There is protection from deportation in
regard of pregnancy in case of some countries. Medical staff is obliged to denounce
uninsured cases.

Discussion: Germany is not prepared at all for the refugees. There needs to be trainings on
legal issues and on cultural competencies. The critical question is the obligation to denounce
and report of physicians.

Summary of the day

Ferenc summarizes the day discussion and report highlighting the worrying developments in
some of the countries. The EHLF needs to focus on the issue of introduction of mandatory

147
testing of key populations including migrants at the European level. Broadening the scope of
our focus (from undocumented migrants to obstacles and barriers) was also expressed by
some people. We also need to adapt EHLF objectives due to the quickly changing landscape.

Tuesday, October 6, 2015

Timeframe AGENDA POINT

09:30 – 09:45 Wrap up from day 1 Ferenc

09:45 – 11:00 Future of EHLF Ferenc

Promotion of EHLF: conferences, workshops

Issues of fundraising, network maintenance,
possible enlargement of the network

11:00 – 11:30 COFFEE BREAK

11:30 – 12:00 Future of EHLF (Continued)

12:00 – 13:00 Any other business + Reimbursement

13:00 – 14:30 LUNCH AND DEPARTURE

Ferenc provides a quick summary of the discussions from yesterday. Gaia requests help in
terms of national health systems (identifying country cases) for her report.

Tasks of EHLF for 2015

Ferenc debriefs on the activities so far of the different work packages that were agreed in
the Budapest meeting. There are still some tasks to complete by the end of this year:

WP2 and 3

2 tools still need to be developed (mapping tool in WP2 and advocacy tool in WP3)

Advocacy toolkit: the Spanish observatory could be a good practice example to extend it to
European level. The toolkit should be an inspiring tool to advocate, based on national case
studies and good practices. Target group: NGOs or policy makers. Recommendations for
policy makers can be extracted out of the documents we already have. Mapping tool: that
could be used as an advocacy tool and also helping the presentation of the work of EHLF.
148
Future of EHLF:

Lella and Ferenc explain the history of the EHLF: in 2011 Yusef, Ton and Harry initiated the
project within the Steering Committee of AIDS Action Europe. As the UK was about to
provide access for irregular migrants, this issue was picked up as the first issue to cover.
There was no budget for the pilot phase. Later there were discussion which aspects of HIV
and law should be covered. The network consisted of 5 national organizations with policy
focal points and legal experts.

What should the future of EHLF look like? Do we want to add other countries? We need to
keep the network alive. There could be a separate meeting for legal experts to discuss and
perform European strategic litigation. Certain countries could be responsible for a region
and contact national partner organizations to put together the report and have a full picture
of Europe. Other topics that could be the focus of EHLF are HIV and the workplace (e.g.
health care workers or aviation workers), HIV and the health system. Recommendations that
come from the European level are very important for the national level. There is a need for
updating the reports of national situations.

The EHLF decides to enlarge the network with 5 further countries based on the conditions
that the present countries were included: Portugal, Turkey, Finland, Romania and Austria.

Several events and conferences are listed where the result of the EHLF survey can be
presented (e.g. Oslo conference on migrations, Durban IAS conference etc.) EHLF members
are encouraged to use the report in national events and conferences as well.

Closing round – some remarks of the participants

“The network is important.”

“Unfortunately we can see more bad practice in the countries than good.”

“I am looking forward to the final report and the future activities.”

“It was a very pleasant meeting, very useful, all contributions are really appreciated.”

“The baby seems to be growing.”

Thanks you for sharing experiences, it´s been very exciting to work here these 2 days.”

“Let´s push the thing forward.”

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Annex 7 – Reports from EHLF members

AIDES - France

1) Describe the activities that your organization has undertaken during the project at the
national level. Include the level of cooperation when filing the country reports and
compiling a list of national NGOs and good practices from your country, any challenges
that you faced.

During the project, AIDES met government, parliamentarians and independent

administrative institutions in order to present our amendments related to projected
immigration bill. The purpose of these amendments is to defend ill migrants’ rights. We
faced some difficulties in getting our amendments adopted by parliament (most of them
haven’t been), because of the government's inflexibility and the general political climate.

AIDES also published a report on the practice of granting residence permits for medical
reasons, (you can download it here). It was published in the context of the projected
immigration bill.

Here is a list of national NGOs implicated in the defence of ill migrants’ rights : ARCAT,
Cimade, Centre Primo Levi, Comede, Dom’Asile, Gaia, Gisti, La Case de Santé, Médecins du
Monde, Réseau Louis Guilloux. All of these NGOs are part of the Foreigners’ Health Rights
Observatory – l’Observatoire du Droit à la Santé des Etrangers (ODSE).

2) Describe the added value of being member of the EHLF at your national work, whether
it is complementing already existing activities or brought a new profile to your work
and whether you are interested in a future cooperation.

Being a member of EHLF is an added value for our national advocacy program. Having a
comparative approach of the various legal frameworks for ill migrants within Europe is an
asset for the reinforcement of our policy lobby. Especially as our advocacy program isn’t
limited at the national level : we also have vocation to provide observations within European
Courts in cases related to ill migrants.

In addition, the information collected within EHLF will also improve others programs in
which AIDES takes part, such as Euro HIV Edat. The general objective of this program is to
conduct an inventory on the issues of migration and HIV in the various countries
participating in the project. It also contributes to and complements our work with Groupe
Sida Genève’s, one of our European Coalition Plus partners, work on guidelines concerning
country of origin information.

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We are interested in pursued, future cooperation particularly with the arrival of five new
countries to EHLF program. We see it not only as an opportunity to share and draw up best
practices but also as a means to improve the impact of our advocacy program, by widening
the support-base across borders and showing solidarity with our European colleagues.

PRAKSIS - Greece

1) Describe the activities that your organization has undertaken during the project at
the national level. Include the level of cooperation when filing the country reports
and compiling a list of national NGOs and good practices from your country, any
challenges that you faced.

Since the inaugurating meeting in Budapest, PRAKSIS has undertaken initiatives that
supported activities within the three work packages of the project:

- Internal meeting and briefing of new local project officer followed by teleconference
with AIDS Action Europe project manager
- Setting up of a list of stakeholders from the field of HIV and migrants/refugees
- Setting up of an online tool of collection of information from interested stakeholders
- Meeting and cooperation with state and Civil Society associations in the redaction of
the national report [HCDCP - Centre for Life - Positive Voice - Greek Council for
Refugees]
- Promotion of the program through website and social media74
- Completion of the national report and presentation to the joint meeting of the
projects’ allies in Berlin.
- Editorial regarding refugee crisis and the results of the national report75
- Networking and engagement impact: We caused two meetings with departments of
the HCDCP that resulted to the commitment of their leading legal consultant to offer
future technical support to issues stemming from the EHLF agenda.
- We presented data from the national report to the 27 th Pan-Hellenic AIDS Conference
under the dossier ‘Access to health services’
- Challenge: Contradicting information regarding legislation and real-life circumstances

2) Describe the added value of being member of the EHLF at your national work,
whether it is complementing already existing activities or brought a new profile to
your work and whether you are interested in a future cooperation.

Even though PRAKSIS has been working on the field of HIV/AIDS since its inauguration
(2004), participating to EHLF platform helped in positioning and opening a discussion for the
collaboration of local legal and policy departments of organizations. The national report
triggered HCDCP’s proactive initiative to meet and agree on collaborating in ad hoc or
general issues with their leading legal expert.
74
http://tinyurl.com/owfuaac
75
http://tinyurl.com/nuxy3sg
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EHLF has been nested in the work carried out by the Advocacy department and offers a very
useful base to intervene on issues regarding migrants, refugees, public health and HIV.
Following the feedback from the Berlin meeting, we support the continuation and expansion
of the program and we are interested in participating in a potential follow-up scheme.

HCLU - Hungary

1) Describe the activities that your organization has undertaken during the project at
the national level. Include the level of cooperation when filing the country reports
and compiling a list of national NGOs and good practices from your country, any
challenges that you faced.

The legal expert of the HCLU monitored the relevant national legislation and provided the
results to the DAH/AAE. The expert filled in the questionnaires and presented about the
Hungarian situation to the network. The challenge concerns the discrepancy between the
formal law and its implementation. There are not only concerns about the proper
implementation of the law on the books, but also regional differences. The experts, social
workers working in this field also report about this difficulty. This affected the outcomes of
this report in terms of the extent to which it reflects the actual situation in Hungary. In the
future, it would be beneficial to take this discrepancy into account when designing the
methodology of the research.
2) Describe the added value of being member of the EHLF at your national work,
whether it is complementing already existing activities or brought a new profile to your
work and whether you are interested in a future cooperation.
The HCLU has developed a special set of knowledge as a result of participating in the project.
The topic of the project has already been in the interest of the organization; however, it was
not our focus. The project enabled the HCLU to identify strategic focuses in this field for
future activities and it informed our work with national examples and good practices. The
HCLU is interested in future cooperation both regarding the topic of the current project and
broadening its focus. We would be interested in taking this research further building on the
lessons learned from the project. Furthermore, we envision a joint advocacy campaign on a
previously identified topic stemming from the research results.

LILA Milano – Italy

Italy is a country heavily affected by the phenomenon of migration. Presently, the country
hosts about 95.000 refugees in centers established by the government and temporary
regional structures. In 2015, migrants who were able to enter in Italy were mostly from
Eritrea (29.000), Nigeria (13.800), Somalia (8.600), Sudan (6.700) and Syria (6.300). They all
have the right to some form of international protection. (La Repubblica, September 1 st,
2015).

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Fondazione LILA Milano ONLUS has been a member organization of the EHLF since 2012 and
has been monitoring the situation of undocumented migrants in Italy since then in order to
produce documentation for the Forum and take active part to the its activities and
exchanges.

During the course of 2015, contacts were further strengthened with some of the most
relevant Italian NGOs (Caritas Italiana, NAGA, Opera San Francesco) working on migrant
issues in order to:

- seek their collaboration for the update of the country survey

- follow-up on the recent emergencies in order to find common solutions to the
increasing number of undocumented migrants accessing the country at some periods
- develop adequate tools to meet their needs, especially related to health care

In order to support undocumented migrants, LILA Milano in 2015 completed a specific

project: “HIV Toolkits for Migrants” with the direct involvement of some of the groups more
represented in Italy: the Chinese, Egyptian, Nigerian, Peruvian and Russian communities.
Four video tutorials were produced for each of the different communities, in their native
languages, on the following HIV topics:

- Rights of migrants on HIV and access to health services for testing and treatment

- HIV prevention and transmission

- Testing for HIV

- Living with HIV

The texts of the videos tutorials were elaborated by cultural mediators after participation to
a training course on HIV issues and the messages recorded were delivered by their
communities. They are available in LILA Milano website:
http://www.lilamilano.it/it/campagne/81-video-hiv-per-migranti-in-italia and can be found
also the Youtube channel https://www.youtube.com/channel/UC87bVMrxM1f-2cyFgjrK0xw

The video tutorials “HIV Toolkits for Migrants” will likely be made available to migrants
residing in different countries through the AIDS Action Europe Clearing House, in the special
section dedicated to the EHLF project.

Another relevant document produced in Italy during the same period on migrants and
healthcare is the report issued by NAGA: “Health is (not) permitted. Survey on access to
health care for undocumented migrants in hospitals in Milan, from January 9, 2014 to
February 28, 2015” It documented many cases in which the law was not applied and
migrants encountered different problems in accessing health services. It served as powerful
tool to advocate for law enforcement.

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Sharing experiences with the other members of the EHLF gave insight and inspiration for the
work at national, regional and local level and LILA Milano social workers benefited of such
exchanges in their work to support this specific target group. The two meetings organized
during the project were excellent opportunities to learn about best practices adopted in the
other partner countries, which may be introduced in the future work of LILA Milano in the
next months. The only downside is the fact that the timeframe for such fruitful
collaboration was short. Fondazione LILA Milano would be definitely interested in
continuing such collaboration and in extending it to other countries were undocumented
migrants encounter barriers and problems, in order to join efforts and succeed in changing
the legislative context where needed.

SOA Aids Nederland – the Netherlands

1. The activities STI AIDS Netherlands has undertaken during the EHFL project at the
national level.

STI AIDS Netherlands has during the EHLF project been building an extended network of
NGO policy leads, with linkages to legal experts, healthcare workers, and especially to people
living with HIV. This network includes policy- and law makers of the Ministry of Public Health
and the Ministry of Security and Justice, Members of Parliament and Human Rights
specialists. The main goal of this Dutch network focus on the undocumented migrants living
with HIV to get access to the Dutch (health) care system by providing information and
advice on specific aspects of health (and HIV) care and by giving them legal support when
necessary. STI AIDS Netherlands did meet the members of the network in 2014 and 2015
during various meetings on a national and on a regional level. The results of the meetings
are written in the Dutch country Report 2015. The members of the network include:

- the National Health Care Institute and their Helpdesk for undocumented persons (
since healthcare providers can apply for compensation for unpaid costs of medical
necessary care for irregular migrants.
- Pharos, the Dutch centre of expertise on health disparities.
- The Dutch HIV Association, the Dutch patient organisation.
- LAMPION, the Dutch Network of health care workers who give support to
undocumented migrants. Members of the platform are the National Mental Health
Organisation (GGZ Nederland) and the Public Healthcare Organisation (GGD
Nederland), the General Practitioners Association (LHV), STI AIDS Netherlands, the
Dutch Council for Refugees, the Tuberculosis Foundation (KNCV), the Union of
directors in healthcare (NVZD), The Johannes Wier Foundation and Doctors of the
World (Médicins du Monde).
- The Law firm Everaert Immigration Lawyers.
- The Netherlands Institute for Human Rights.
- The Dutch Program on Health Care providers of STI AIDS Netherlands.

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 - The Dutch Association of HIV specialists.
- The Dutch Network of HIV nurse practitioners.

2. The added value of being member of the EHLF at the national work of STI AIDS
Netherlands.

The EHLF Project did enable STI AIDS Netherlands to monitor and review the Dutch HIV
relevant legislation, including linking and learning between HIV legal and human rights
specialists and the involved NGOs. They could produce relevant resources for the members
of the Dutch network with their focus on undocumented migrants living with HIV in the
Netherlands. The output in the Netherlands includes an improved access to HIV Services
through the reduction of legal obstacles.

Due to the EHLF project there is a growing interest in the Netherlands to inform each other
and take joint action on legal issues related to undocumented migrant living with HIV and
the knowledge of the estimated number of undocumented migrants living in the
Netherlands has been improved to 25.000 – 50.0000 in 2015. Due to privacy rules the
number of them living with HIV remains however estimates. STI AIDS Netherlands embraces
the aims to bring together legal an policy experts to jointly monitor, advise and act where
and whenever human rights of people living with HIV, especially undocumented migrants
living with HIV in having access to HIV services and HIV treatment.

3. STI AIDS Netherlands is interested to continue the cooperation in the EHLF Project.

STI AIDS Netherlands embraces very much the goal of EHLF Project jointly advocating to
Governmentsn in Europe, using good national practice examples with clear public health
benefits. We are as member of the project all aiming the same goals: access to HIV services
and to HIV treatment for all undocumented migrants with HIV and to an improved access
health insurrance in countries where this isn’t the case at present. One of the main goals has
been to coordinate the output of the EHLF in the Netherlands. STI AIDS Netherlands would
like very much to continue their coordination in the Netherlands to enable them in the
coming years to monitor and review HIV relevant legislation, and linking and learning
between HIV legal specialists and NGOs and producing relevant resources and to continue to
provide an overview of relevant EU laws and policies. Especially important to continue the
work of the EHLF since the situation in Europe has been dramatically changed and the key
populations are at most risk and their human rights have been violated in many ways and in
many places.

Amsterdam,

November 30, 2015

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Ronald A.M. Brands LLM
Policy officer on social and legal aspects, Program Professionals
rbrands@soaaids.nl

Soa Aids Nederland

Keizersgracht 390, 1016 GB Amsterdam
t +31(0)206262669 f +31(0)206275221
soaaids.nl, aidsfonds.nl, stopaidsnow.nl

SIEC PLUS – Poland

1) Describe the activities that your organization has undertaken during the project at the
national level. Include the level of cooperation when filing the country reports and
compiling a list of national NGOs and good practices from your country, any challenges
that you faced.

Recent changes on the Polish political stage do not seem very optimistic for us. The will to devaluate
the role of our membership in the European Union and the obligation to follow the European
Commission directives in different areas in the light of the recent statements on the unease attitude
towards the refugees (“X-raying” them in order to find any defect) are a real concern for us for the
future.

According to the estimations, on 1 January 2015, in Poland, there were approx. 50 to 70 thousand
undocumented migrants.

Foreigners who stay in Poland illegally have no right to social assistance.

Foreigners who stay in Poland illegally neither have the right to social benefits for the family.
A foreign citizen who stays in Poland illegally can benefit from the healthcare provided by the rescue
teams outside of the hospital, in accordance with the Act of 27 August 2004 on healthcare services
financed from public funds.

All the information in English is on the website www.migrant.info.pl

Numerous organizations work in the field of foreign citizens’ rights (including illegal migrants):
Helsinki Committee for Human Rights http://programy.hfhr.pl/uchodzcy/en/ , UNHCR
https://www.emn.gov.pl/esm/form/r17365, Commissioner for Human Rights
https://www.rpo.gov.pl/en, National AIDS Centre , Social AIDS Committee, Foundation of Social
Education, Polish Foundation of Humanitarian Aid RES HUMANAE, Association „ Be with Us”,
National Consultant on Infectious Diseases.

We collaborate with all these institutions.

In 2015, we took part in the work on the objectives of the National Programme of Preventing New
HIV Infections and Combating AIDS for the years 2017-2021 and in the section "Care” a record on
access to medicines for undocumented migrants was created on our request.

Recently, we intervened in the cases of seropositive citizens of the Ukraine, Chechnya, China,
Cameroon, Georgia and USA.

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 2) Describe the added value of being member of the EHLF at your national work, whether
it is complementing already existing activities or brought a new profile to your work
and whether you are interested in a future cooperation

As we wrote above, it is thanks to our partnership with EHLF that "SIEC PLUS" proposed to include
the record on immigrants in the text of the new national programme on HIV / AIDS.

The obtained data on good practices in the UK, Germany or France is very helpful for our activities.

We are definitely interested in the collaboration within the framework of EHLF, because we are
convinced that in the light of the new political situation in Poland, any good practices in the member
countries and their implementation in the Polish reality will help to resolve the matter of access to
ARV treatment also for undocumented migrants who stay (or will stay) in Poland.

Q-Club – Serbia

Final report for European HIV Legal Forum in 2015

Q-Club has joined the EHLF initiative in 2014 as a CSO representative from Serbia. It was
a first year that Serbia joined this project. During the project Q-Club representative took
a part at two EHLF working meetings that have been held in Budapest and Berlin. For the
purpose of compiling the country report, information about the health care system,
insurance and health care protection for migrants, with the focus to people in irregular
situation, has been gathered and report has been created and submitted in June 2015.
The report included the overview of the situation of migration in Serbia, which is
dramatically changed in 2015. The information has been updated in October 2015.
Information has been gathered through desk top analysis of the legislation that has been
conducted internally and in cooperation with two CSOs (Belgrade Centre for Human
Rights and Asylum Protection Center) that works particularly on the issues of migrants in
Serbia and possesses information from the field. Contacts of those organizations have
been shared with the EHLF. There were no significant problems in gathering the
information as Q-Club is well recognized organization on the national level and it has
good working relations with other CSOs. Also, some of the data used were publicly
released by the Government.
Q-Club is organization that works for support of PLHIV and in the field of HIV and patient
rights. However, participation in the EHLF has been extremely valuable for the Q-Club as
we have open one new area (health care for migrants) which is compatible with the
organization mission and contribute to comprehensiveness of our services. Serbia is a
country on the so called “Balkan route” of migration and in 2015 there has been
significant increase in numbers of people crossing through Serbia with the need for
health care. In this situation HIV and other STIs issues need to be considered. We offer
free testing, counseling and facilitate linkage to care for migrants through the
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 organizations who works in the field with migrants/refugees. At the moment there was
not much of expressed need for this kind of services from migrant population in Serbia
as people tend to stay only for short period and continue to travel toward Western
Europe.
Also, participation in EHLF was valuable for networking among organizations from
different countries and that partnership was proven in some concrete cases where
people who have contact with our organization have a need for a support regarding HIV
therapy in other country/ies. This will be an added value of the project for the future.
We hope to continue our participation in EHLF working on people in irregular situations
issues and putting in practice results we achieved in 2015, as well as to consider other
relevant issues at the Forum.
Belgrade, 20/11/2015

CALCSICOVA – Spain

Our participation as CALCSICOVA (Federation of Associations on HIV/Aids of the Valencian

Autonomous Community) in the EHLF project has suppose a real challenge due to the fact
that Health Care system is under responsibility of Autonomous Communities which implies
that we have 17 different systems with a high differences with regard to access issues
depending on the Political party ruling the Autonomous Community.

Furthermore due to the results of the regional elections on May the Spanish political map
has changed completely so the situation regarding access to health care for undocumented
migrants has changed once again, complicating the task of having a real mapping of the
issue.

The main activities that we have done for EHLF project are linked to the research of real
information about what was going in this access matter taking into account the confusion
that all those legal changes has produced since 2012 when the National government broke
the universal access to the health care system . We have had several contacts with many
local organizations in order to mapping correctly the situation. Also search of good practice
examples has been a challenge mainly due to the high social response against this legal
change. So a lot of civil society organizations have been created for fighting against the Royal
Decree 16/2012.

Participating in EHFL project has been an incredible chance to our organization in order to
have real picture about the European Situation on these issues. Furthermore it helps us to
understand the need to work at European level in order to get real changes in the region.
We see this project as a first step in the hard way of getting access to care and medication
for any HIV + person in Europe. We have a real interest in the continuation of EHLF that,
from our point of view, has to focus its activities in lobbying to universal access.
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 NAT – the United Kingdom

NAT (National AIDS Trust) – Final country report

1) Describe the activities that your organisation has undertaken during the project at the national
level. Include the level of cooperation when filing the country reports and compiling a list of
national NGOs and good practices from your country, any challenges that you faced.

As HIV treatment access is guaranteed across the UK, NAT provided detailed examples of best
practice in this area.

During the time-period covered by the project there have been major policy developments in access
to healthcare in the four nations of the UK. In addition to our advocacy work, NAT analysed newly
introduced regulations in England, Scotland and Northern Ireland to provide an accurate and up-to-
date summary of access across the UK.

We also contributed national intelligence on national NGOs and legal experts working in this area.

2) Describe the added value of being member of the EHLF at your national work, whether it is
complementing already existing activities or brought a new profile to your work and whether
you are interested in a future cooperation.

Access to healthcare in general and HIV treatment and care in particular is a major area of work for
NAT, even setting aside our work with the EHLF. The European dimension of this work is becoming
increasingly important in the national context, as the UK Government is seeking to reduce free access
to EEA nationals and increase reimbursement from EEA member countries wherever it is possible,
within existing obligations. The EHLF is a valuable source of intelligence and support in this context.

NAT has also found the EHLF a key vehicle for dissemination of the lessons from our successful
campaign to provide free universal access to HIV treatment for all migrants, regardless of residency
status.

The EHLF has added to the reach of our work, and NAT would like to see the cooperation continue,
perhaps on a new legal issue where pan-European working could lead to better outcomes for people
living with HIV.

Sarah Radcliffe, Senior Policy and Campaigns Manager, NAT

November 2015

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