Blog post written by Juliana Guerrero, a political science and law student at the Universidad de Los Andes, Colombia. Juliana is a research assistant at the Center for Global Studies at Universidad de Los Andes, focusing on international development and is doing an internship with the Refugee Law Initiative. She holds a certificate from the Program of Advanced Studies on Human Rights and Humanitarian Law from American University as well as a certificate in International Criminal Law from Leiden University.
This article evaluates the constitutional protection of the right to health in regards to Venezuelan migrants, specifically in the case of migrant children, to determine to what extent Colombia is complying with its obligations of international human rights standards.
Venezuelan Humanitarian Crisis
The social and economic conditions in Venezuela have led to a humanitarian crisis, as a result, over 3.4 million people have left their homes and have migrated to different countries in Latin America. Colombia has received more than 1.2 million of these Venezuelan migrants and refugees. The situation in Venezuela is turning more precarious due to an increase in the lack of access to food, housing, and healthcare as well as the aggravation of poverty and extreme poverty. Moreover, widespread violations of both civil and political and economic, social and cultural rights have pushed Venezuelans to flee their country to satisfy their basic needs and guarantee the exercise of their rights, such as health.
The high number of arrivals in Colombia and the absence of a comprehensive and far-reaching migration policy has meant the Colombian State has not been able to respond entirely to the needs of Venezuelans. In response to the migrant and refugee crisis, the Colombian Government has provided a temporal residency permit to Venezuelans (Permiso Especial de Permanencia –PEP). It is estimated that around 60% of the Venezuelan population in Colombia has regular migratory status and the rest are either undocumented or in the process of being documented.
Many Venezuelans arrive in Colombia with health issues that present a great risk for their lives, particularly, children suffering from malnutrition, pregnant women and people with chronic diseases such as cancer and HIV. The most vulnerable are those living in poverty and those with an irregular status as they face countless institutional barriers such as difficult routes to regulate their status. As a consequence, their right to health is restricted, leaving them unprotected.
Access to Basic Emergency Health Care for Migrants
The Colombian Constitutional Court has through its interpretation of the Constitution declared that the rights of both nationals and foreigners are of equal importance and hence determined that both are subjected to enjoy the same rights without any discrimination. The Court has also declared the right to health as a fundamental right, meaning that access should be universal holding equal conditions for all.
Subsequently, it has declared that within the fundamental right to health, access to basic emergency health care should be guaranteed to every person in the country independently of their migratory status. In this sense, health care should respond to the basic needs of people within the country and to respect human dignity. Here, the Court has established that foreigners are eligible to receive minimum care in health cases of extreme urgency and necessity to protect and preserve life. The Court considers that a complete access to basic emergency health care suggests employing all means necessary available to stabilize a patient’s health and life.
This interpretation from the Court is in compliance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Protocol of San Salvador and the American Convention on Human Rights.
However, in spite of the Court’s attempts to define emergency health care access, a legal definition has not been provided which has led to ambiguous criteria on what this service includes and who has access to it. This complicates the situation for migrants as service providers have a wide degree of discretion regarding the provision of the service. Additionally, in practice the access to health care is subject to the capacity and economic resources of the health provider, which is uneven across the country.
Limitations to Integral Health Care Access for Migrants
On the other hand, integral health care access is defined as the efficient provision of access to services and technologies that not only stabilize life but guarantee the physical and mental integrity of a person, regardless of the origin of the medical condition or coverage of it. In practice, only Venezuelan migrants who hold a Visa or the PEP are admitted to the Social Security system and only those who are in the system can have access to integral health care. For instance, in the case of pregnant migrant women, an official from the Ministry of Foreign Affairs stated that emergency health care access covers pregnant women only when they are in the process of labour. Thus, they do not have the right to integral healthcare, which would include prenatal checks, tests, etc., as they are guaranteed within the Social Security System. This and other situations are real limitations for irregular migrants who cannot acquire the required documents because of the institutional and economic barriers due to the humanitarian crisis.
The Constitutional Court maintains that it is aware of the humanitarian crisis in Venezuela and that there is a greater need for attention and action on behalf of the Colombian government to lower the institutional barriers placed upon Venezuelans. It also states that the crisis has placed an enormous amount of pressure on Colombian institutions that don’t have sufficient capacity to attend the crisis and therefore the needs of migrants. Yet, the Court emphasizes that if irregular migrants want to receive complete access to healthcare they must regularize their migratory situation so they can access the Social Security system and be eligible for rights. It is thus contradicting itself and finding no permanent answer to the barriers that these migrants are facing.
When the Court demands that Venezuelan migrants regularize their situation to receive complete access to their right to health, the Court is disregarding the reality of the humanitarian crisis in Venezuela which limits the possibilities for people to acquire the documents necessary to regularize their situation. For instance, according to an investigation by Dejusticia, these barriers include the legalization of certain documents and expedition of passports that are no longer routinely available because of Venezuelan administrative procedure barriers as well as the high economic costs of these procedures that are inaccessible to migrants because of the economic and social situation in Venezuela. As a consequence, irregular migrants are discriminated against as they are left unprotected by the Constitutional Court because of their migratory status.
Moreover, Venezuelan children are known to be the most vulnerable group in the humanitarian crisis as they are the most affected by food insecurity. A situation which is worsened for many as they are not able to access the Colombian health system because of their irregular migratory status. This situation violates the best interest of the child. Under the Colombian Constitution, children are subjects of special protection and their right to health care should be guaranteed by the State without discrimination. The Court has established that when children are facing broad vulnerability because of an illness they must receive immediate and efficient protection where they can have complete access to health care. However, this response of the Court is still not confronting the barriers that are imposed on migrants including children with the requirements of documentation to have regular status. In this sense, the Court is overlooking the principle of the best interest of the child as it is not advancing in guaranteeing all-inclusive health care for them.
As a result, Colombia is not meeting its responsibilities in guaranteeing an integral access to the right to health when it comes to children as it is leaving them without a guarantee of their right and is excluding many of them because of their irregular migratory status. Therefore, it does not fulfil its obligations under international conventions such as the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights (ICESCR). For instance, The Committee on Economic, Social and Cultural Rights recently declared that in order to achieve the obligations of the ICESCR, people under the jurisdiction of a State no matter their migratory status, including migrants and refugees, must enjoy the rights established in the Covenant even if their migratory situation in the country is found to be irregular. An obligation Colombia is not complying with since irregular migrants, including children, are unable to access health care because of the barriers mentioned above.
The requirement imposed for Venezuelans to regularize their migratory situation in order to exercise their right to health care is a disproportionate burden considering the humanitarian situation they are facing. The Court is thus leaving these migrants unprotected, especially those in extreme poverty as well as disregarding the context of the Venezuelan crisis.
The right to health restricted solely to emergency care until migrants regulate their migratory situation ultimately violates the right to health under international standards. This is due to the fact that migrants receive emergency health care only when they are at a point of extreme necessity, without regard for the context of a humanitarian crisis where people cannot access the health care system any other way due to the economic and institutional limitations.
In this sense, The Court must take into consideration the humanitarian crisis and its implications, especially, in terms of health. Also, it must consider that the current Colombian migration policy is not a useful approach to attend the overall situation in which migrants arrive in. In this regard, the PEP is not an adequate policy for migrants to overcome the institutional barriers and the approach is essentially excluding the most vulnerable people in being able to exercise their fundamental rights, especially having access to their right to health. This is an impractical strategy as it forces migratory regulation as a requirement for the people of Venezuela to access health care. Hence in order to fulfil the international obligations ascribed to Colombia as well as the mandates in the Colombian Constitution, the Court must guarantee constitutional protection of the right to health for all Venezuelan migrants. It should recommend that the government designs a more coherent and long term migration policy that begins to include the Venezuelan population by aiming to expand regularization of their migratory status as well as guaranteeing access independently of their migratory status, all while contemplating the growing Venezuelan humanitarian crisis.
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