Restricted access to health care for asylum-seekers: applying a human rights lens to the argument of resource constraints

Granting health care to vulnerable groups of the population including asylum seekers is often regarded as a ‘benevolent handout (…) by state or third parties to ameliorate suffering of passive recipients of assistance’.1 As opposed to this, the notion of health as part of human rights obliges states—legally and morally—to protect, respect and fulfill their right to health. This includes the right to health care2 and the obligation of the signatory states with regard to the non-discriminatory realization of this right by refraining ‘from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services’ (General Comment No. 14, emphasis not in original).3 Asylum seekers, however, face legal restrictions with regard to their access to health care in many countries of the European Union (EU) as shown by the Report of the Migrant Integration Policy Index (2016). From a human rights perspective, restricting the access to health care based on residence status is a violation of the right to health and has to be abandoned. Opponents of this perspective usually counter that the probable only temporary stay in the reception country legitimates a temporary restriction of the right to freely access full health care services. In addition, resource constraints are frequently put forward by policy-makers to weaken the realization of economic, social and cultural rights, including the right to health. The argument of resource constraints legitimates the different provisions for refugees in affluent and less affluent countries, but is commonly misused as excuse for discriminatory practices. Resource constraints were also put forward by policy makers in Germany when the access to full health care for asylum seekers was legally restricted in 1993. The aim of the restriction was to reduce the budget spent on asylum seekers directly by reducing cash benefits and the access to health care and indirectly by deterring asylum seekers from migrating to Germany.4 Whether the (allegedly) temporary stay of asylum seekers allows for the denial of the full right to health care is still subject to juridical debates. Wherever it is not (yet) legally enforceable, its realization depends on scientific, public and political debate. A falsification of the common populist argument about resource constraints is a crucial step towards the non-discriminatory realization of the right to health and possibly even ignites further debates. Empirical assessments in Germany show that the full realization of the right to health (care) for asylum seekers would not automatically increase the resources spent on their health—it might even reduce them.5 The average total health expenditure on asylum seekers in Germany between 1994 and 2013 was about 360 million Euro per year in absolute terms. Per capita health expenditures for asylum-seekers subject to restricted care were on average higher than for those granted regular access comparable to the general population.5 This observation holds nearly throughout an observation period of two decades and is not compatible with the populist economic argument against granting full access to health care to asylum-seekers, namely that health care costs would rise or even sky-rocket. On the contrary, these trends rather indicate that the legal restrictions may ultimately increase health care costs, e.g. due to delayed care, administrative costs, parallel structures, and the shift from primary to secondary or tertiary sector. Applying a ‘right to health’-specific lens combined with economic arguments unmasks the pre-textual nature of the argument to reduce resources spend on asylum seekers by excluding them from equal access to health care. In order to prevent arbitrary violations of the human right to health, we see the need for a transparent and participatory decision making process in destination countries of asylum seekers who ratified the International Covenant on Economic Social and Cultural Rights. Such a process should consider core principles of a human rights approach including non-discrimination, participation, transparency and accountability.2 Gruskin and Daniels have developed such a process linking principles of procedural justice and human rights.6 Their idea of ‘accountability as reasonableness’ acknowledges the need for democratic decision making over scarce resources in health care. This decision making process should equally include the claims of asylum seekers as they are subject to their host countries’ state authority and as such to the prevailing legal situation. So far, health care for asylum seekers has often been considered an act of charity and not a question of human rights. Adhering to the core principles of human rights and to the idea of accountability as reasonableness goes beyond invoking a human right to health care. It shows a pathway towards the equal recognition of the rights of asylum seekers or, as Hannah Arendt, one of the most visible refugees of the 20th century has put it, of their ‘right to have rights’. The authors declare that they have no competing interest.