Blog post written by Bethany Hastie, Assistant Professor, Peter A Allard School of Law, University of British Columbia, and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 15 aims to ensure that all migrants, regardless of status, have safe access to basic services. This objective includes a number of recommendations to facilitate access to basic services by migrants. While the objective focuses especially on eligibility and access to health care and education, fundamental human rights also exist in relation to adequate housing, food, social security, and work, as set out in the International Covenant on Economic, Social and Cultural Rights. Under Objective 15, migrants should have safe access to basic services in all of these areas.In addition to recognising the rights of migrants to access basic services, it is critical to evaluate and monitor whether and how Objective 15 is implemented in national law, policy and practice. This article discusses 3 key indicators that are vital to effective implementation of Objective 15 in practice.
1. Non-discrimination in eligibility for basic services under law (Objective 15, para 31(a); Universal Declaration, arts 1, 2; International Covenant on Economic, Social and Cultural Rights, arts 2(2), 3, 4; Migrant Workers Convention, arts 7, 25)
Migrants have fundamental rights to access basic services, such as emergency health care and education. Yet, in practice, many migrants are often unable to access these services due to discrimination. National laws may commonly exclude migrants from accessing health care, education, housing, social assistance and other basic services. In other cases, national laws may permit or require disclosure of sensitive information in order to access services.
Discrimination has been defined by the Committee on Economic, Social and Cultural Rights as: “any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights”.[1]Exclusions under law, as well as barriers in practice, create discriminatory treatment for migrants in accessing basic services, impairing their ability to enjoy and exercise their international human rights on equal footing with other individuals within the jurisdiction of a state.
In order to fulfil Objective 15, which requires states to ensure that migrants have “safe access to basic services”, national laws, policies and practices in respect of those services must be carried out in a non-discriminatory manner. Ensuring safe access to basic services begins by ensuring that migrants are eligible to access basic services in a non-discriminatory manner. As is set out in international law, and affirmed by the Inter-American Court of Human Rights, the principle of non-discrimination exists “irrespective of a person’s migratory status”.[2]Any distinction under law must be justified as serving a legitimate objective, and must be reasonable and proportional to achieve that objective.[3]Therefore, in order to comply with the requirements of Objective 15, any distinction on the basis of migration status under national law must be justified and must not amount to discrimination on the basis of race, ethnicity, national origin or other protected grounds.
Progress towards implementing this objective entails, as a starting point, conducting a thorough review of national laws relating to eligibility and access to basic services, including health care, education, housing, labour protections, social assistance, legal assistance, policing, and others. Through a thorough review, areas of distinction on the basis of migratory status should be identified. Where these distinctions can be justified, they may be permitted. However, where no legitimate justification can be put forth that accords with international human rights law, the distinction must be struck down in law.
2. Limiting the collection of migration status-related information in service provision (ICCPR, art 17; Migrant Workers Convention, art 16)
In addition to ensuring non-discrimination under law, migrants must not be discriminated against in their ability to access basic services in practice. Migrants may perceive barriers to accessing basic services where they will be asked or required to disclose personal information, especially their migration status, and/or where they perceive that such information may be shared with other authorities, notably police and immigration authorities in the case of irregularly present migrants. Ensuring safe access to basic services for all migrants requires states to adequately limit the collection of personal information, and protect personal data from information-sharing where it is collected.
Service providers should carefully consider the circumstances in which disclosure of migration status, or information related to this, is necessary to provide the service. In most cases, disclosure of such information is not necessary. For example, a requirement to provide a birth certificate in order to enrol a child in school may indirectly discriminate against irregularly present migrants and their children.[4]Providing this kind of documentation may not be found to be necessary or justified for the purpose of school enrolment. Many municipalities and states have already moved away from requiring such documentation in the educational contexts. For instance, the Italian cities of Florence, Torino and Genoa have publicly extended access to education by granting all children the right to attend nursery school regardless of immigration status.[5]
Progress towards achieving Objective 15 would thus be indicated, in part, by examining whether and to what extent access to basic services is currently predicated on a disclosure of migration status or related information, and evaluating whether such disclosures are necessary. Where disclosures are necessary, additional safeguards should be put in place to protect the personal information of the clients, and alternative documentation that could meet the necessary requirements should be considered and substituted where possible. In all other circumstances, no personal documentation that may implicate one’s migration status, including birth and marriage certificates, driver licences or resident cards, passports or government-issued proof of residency, should be required in order to access basic services.
3. Decoupling service provision from immigration enforcement (ICCPR, art 17; Migrant Workers Convention, art 16)
As a best practice, progress towards achieving Objective 15 and ensuring non-discrimination in access to services also entails the separation of service provision from immigration enforcement. Objective 15 acknowledges that cooperation with immigration authorities can exacerbate the vulnerabilities of migrants and compromise their safe access to basic services. Therefore, effective implementation of Objective 15 requires a prohibition on disclosing the migration status of clients to immigration authorities, and a prohibition on immigration authorities conducting enforcement activities in the vicinity of service locations. A number of existing practices and policies already exist which support this indicator, including Médecins du Monde in Paris, France, which operates 21 medical dispensaries for irregular migrants in cooperation with local authorities.[6]
Progress towards achieving Objective 15 in this regard would start from recognition under law that service providers are prohibited from sharing personal information, including migration status of clients, with immigration authorities, absent specific legal direction, such as through a warrant, to do so. Progress would also be indicated through policies prohibiting immigration authorities from conducting enforcement activities at or near service locations, and through observation of these authorities to determine whether and when service locations are targeted for enforcement activities.Unless migrants can be assured that their access to services will not result in encounters with immigration authorities, they will not have safe access to basic services. Therefore, any laws, policies and practices that support cooperation between service providers and immigration authorities for the purposes of immigration enforcement undermine the ability to effectively implement Objective 15.
Footnotes
[1]General comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, para. 7, cited in Office of the High Commissioner for Human Rights, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, HR/PUB/14/1, 2014 at p23, n29 [OHCHR].
[2]Inter-American Court of Human Rights, Case of the Girls Yean and Bosico v. Dominican Republic, Judgement of 8 September 2005, Series C, No. 130, para. 155, cited in OHCHR, ibid, p24, n30.
[3]OHCHR, ibid, pp24, 27.
[4]As discussed in OHCHR, supra note 1 at p29, citing Parliamentary Assembly of the Council of Europe, Committee on Migration, Refugees and Population, “Undocumented migrant children in an irregular situation: a real cause for concern”, Doc. 12718, 16 September 2011.
[5]See European Commission on Racism and Intolerance General Policy Recommendation No. 16, at p16.
[6]See European Commission on Racism and Intolerance General Policy Recommendation No. 16, at p16.
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