As far back as 1966, Martin Luther King Jr, the charismatic leader of the American civil rights movement, affirmed that ‘of all the forms of inequality, injustice in health is the most shocking and inhuman’.Footnote ¹ Although his statement referred to the imbalance that the American private insurance system generated at the domestic level, it can easily be applied to the situation that community outsiders, such as irregular migrants or people who are not affiliated with a health system, encounter today in many parts of the world.Footnote ²

Health-, social- and immigration-related policies and rights are areas over which states exercise particularly strict sovereign control, and this has meant that irregular migrants and the right to health, whether considered individually or jointly, have struggled to receive consistent recognition in the international human rights project over the last seventy years. Indeed, an orthodox approach to the interpretation of international and European human rights obligations has long displaced both the declared all-embracing personal scope of application of these legal frameworks where the rights of migrants are concernedFootnote ³ and the indivisibility or equal importance of all human rights, thereby reducing state accountability for failures to adequately implement social rights.Footnote ⁴ Thus, the adoption of selective approaches to human rights, where ‘not all [avoidable] suffering and ill-health’ are understood and addressed by social and legal communities,Footnote ⁵ is somewhat embraced and tolerated at different levels of governance. As such, the status and quality of the right to health of irregular or undocumented migrants remain contested within and across different legal frameworks. This anomaly is not only concerning from the point of view of human rights holders and advocates but also because it challenges the internal consistency and moral legitimacy of a legal framework based on dignity and equality that lawmakers and interpreters cannot overlook.

Migration and health are particularly urgent and interconnected areas of human rights enquiry in the twenty-first century for many reasons, which include those mentioned in the following non-exhaustive list. First, international migration rates have significantly increased over the last twenty years.Footnote ⁶ Second, economic inequalities within and across most countries have generally widened.Footnote ⁷ Third, the economic and health crises of the last two decades have exacerbated inequalities and social vulnerabilities affecting the worst off.Footnote ⁸ Fourth, human rights work has shifted from the drafting of binding standards to the context-sensitive implementation and clarification of the former.Footnote ⁹ Finally, important global actors, such as the European Union (EU), still insist on cracking down on irregular migration without opening up avenues for regular migration, while the continent is still beset by various armed conflicts and widespread socioeconomic deprivation.Footnote ¹⁰

Despite this challenging context, over the last three decades, gradual but significant developments in European and international human rights have reduced the conceptualisation and implementation gaps between classical liberal rights and socioeconomic rights (including the right to health), particularly where particularly vulnerable or disadvantaged people or communities are concerned.Footnote ¹¹ Furthermore, the number of migration cases adjudicated on by European courts and tribunals and the migrant-focused standard setting, monitoring and quasi-judicial activities at international level have spiked in recent years.Footnote ¹²

This book invites readers to reflect on a series of questions: Why is it so difficult to equalise the rights of irregular migrants with those of citizens and regular migrants in a genuine human rights law? How have human rights bodies who are entrusted with the interpretation of legal obligations navigated the divide between human and migrant rights? How is the right to health conceptualised across different legal systems? How does this relate to public health and the concept of vulnerability? Why should its implementation prioritise vulnerable people? Why should such a categorisation of disadvantage include irregular migrants? To what levels of health care should irregular migrants and subgroups of the same have access according to the currently fragmented status of human rights law? How can the right to the social determinants of health facilitate the realisation of human and social rights, which are relevant to health promotion, for irregular migrants? And what are the conceptual and operational barriers to the implementation of this right? How can vulnerability- and disability-related arguments within human rights practice be strategised to support a right to mental health and social support for people with mental health issues or disabilities?

These questions can be summarised in the following central research question: Are international and European human rights frameworks sufficiently equipped to interpret and develop the right to health of irregular migrants towards meaningful levels of holistic health care provision and health promotion? The analysis and systematisation of applicable human rights law and jurisprudence (of a binding, authoritative, persuasive or recommendatory nature) I have conducted for this book has left me moderately confident in offering a positive answer. However, to avoid being naïve, it is worth clarifying the boundaries of the current analysis and positioning this research in relation to the existing literature by starting with some working definitions.

I.1 Preliminary Definitions: Irregular Migrants and the Right to Health

For the sake of academic integrity, it is important to be clear on the meaning of certain key terms employed in this book. In terms of personal scope, this study focuses on ‘undocumented’ or ‘irregular’ migrants; its material scope encompasses the ‘right to physical and mental health’ and its interconnections with other human rights in international and European human rights law.

This study refers interchangeably to ‘irregular’ and ‘undocumented’ migrants or people to refer to those foreign nationals who do not comply with immigration law requirements for entry or stay in a country and are, therefore, susceptible to deportation.Footnote ¹³ This wording is in line with the recommendations of various international bodies and the practice of specialised non-governmental organisations (NGOs), although there is no consensus on the correct term to use.Footnote ¹⁴

In 1975, the United Nations General Assembly (UNGA) passed a resolution requiring the ‘United Nations organs and specialised agencies concerned to use in all official documents the term “non-documented or irregular migrant workers” to define those workers that illegally and/or surreptitiously enter another country to obtain work’.Footnote ¹⁵ The UN Committee on Migrant Workers (CMW Committee) recently declared that ‘the use of the term “illegal” to describe migrant workers in an irregular situation is inappropriate and should be avoided as it tends to stigmatise them by associating them with criminality’.Footnote ¹⁶ The UN Committee on Economic, Social and Cultural Rights (CESCR) − the monitoring body of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) − has recently demonstrated a preference for the term ‘undocumented migrants’, whereas the International Organization for Migration prefers to employ the term ‘irregular’ migrants.Footnote ¹⁷ In the European context, the Parliamentary Assembly of the Council of Europe (PACE) has expressed a preference for ‘irregular migrant’ over ‘illegal migrant’ or ‘migrant without papers’, and other monitoring bodies employ similar terminology.Footnote ¹⁸ In addition, the European Court of Human Rights (ECtHR) seems to have finally accepted the terminology of ‘irregularity’ over ‘illegality’.Footnote ¹⁹

Furthermore, the word ‘migrants’ in conjunction with ‘irregular’ is employed not only to embrace people who are in the process of moving through an international border but also those people who have long settled in a country where they do not hold authorisation to stay or reside. Irregular migration is a ‘multifaceted and dynamic’ phenomenon, as individual circumstances, such as labour opportunities, age, protracted time spent living in a country and migratory background, may change a person’s actual migratory status across the lifespan. Although doubts remain concerning the real number of irregular migrants in countries, regions and globally,Footnote ²⁰ estimated figures are significant, and how states respond to this phenomenon gives rise to conceptual, legal and policy challenges at different levels of governance.Footnote ²¹

In relation to health, the Constitution of the World Health Organization (WHO) defines the concept as a ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.Footnote ²² International human rights law has reduced the corresponding legal standard to the ‘right to the highest attainable standard of physical and mental health’ because it was seen as impossible to impose on states a duty to guarantee a ‘state of complete […] health’ for everyone.Footnote ²³ Health is a public good and a human right,Footnote ²⁴ and the enjoyment of good health, although not directly acknowledged or theorised in international conventions, is crucial for us to flourish as human beings.Footnote ²⁵ Therefore, fair and equal access to services should be available to meet basic health needs and ensure equality of opportunity to function in society.Footnote ²⁶

This ‘highest attainable standard of health’, for individuals and communities, must be realised through intersectoral measures concerning both health care and other social determinants of health.Footnote ²⁷ In 1978, discussions between health experts and world leaders led to the adoption of the Declaration of Alma-Ata on ‘primary health care’.Footnote ²⁸ The approach of this milestone public health document, which was endorsed by the WHO and followed and consistently confirmed at other international fora,Footnote ²⁹ has influenced the way in which the CESCR, inter alia, has framed the normative content of the right to health and its correlative general and core international obligations.Footnote ³⁰ Therefore, states are urged, under international human rights law and global health law, to take measures to ‘address […] the main health problems in the community, providing promotive, preventive, curative and rehabilitative services’ through the implementation of public health, medical and socioeconomic measures.Footnote ³¹ In doing so, under both public health and human rights law, state authorities should target health equity and embrace approaches of substantive equality to implement the right to health. This means targeting the elimination of ‘systematic disparities in health (or in the major social determinants of health) between groups with different levels of underlying social advantage/disadvantage’ to allow every population group ‘equal opportunities to be healthy’.Footnote ³²

By writing on the right to health of irregular migrants, I not only encourage the reader to critically question how health care–related human rights obligations are (somewhat inconsistently) interpreted and implemented but also – given the expansive scope of this right, which embraces the social determinants of health – attempt to shed light on overly restrictive treaty interpretations in the context of migrant rights and several intersectional forms of systemic oppression and rights violations that must be addressed to meet the minimum requirements of inclusiveness and coherence of the human rights project.

I.2 The Contours of This Human Rights Analysis: International Law and Public Health

A number of dynamic and challenging issues exist at the intersection of migration, health and human rights, including how the experience of migration and holding a certain migration status can affect, either positively or negatively, the health and well-being of individuals and populations; how migration law and health policies can restrict access to necessary care and the enjoyment of human rights; and how the violations of a broad array of human rights norms can have detrimental consequences on individual health, as in the context of irregular employment and exploitative working conditions.Footnote ³³

This analysis is premised on the consideration that to approach these regulatory challenges, human rights law should give adequate weight to public health and social disability paradigms, as these can complement each other in working towards a human-centred, difference-sensitive and holistic regulation of health and well-being for irregular migrants, who constitute a multifaceted and marginalised group. Above domestic legal sources, human rights law is composed of a number of international and regional legal systems, but human rights is an intrinsically interdisciplinary subject.Footnote ³⁴ Indeed, since the 1990s, health and human rights studies have significantly grown, and the new field of global health law, which incorporates human rights–based approaches, has emerged.Footnote ³⁵ Furthermore, the social model of disabilities is embedded, with some adjustments, in the UN Convention on the Rights of Persons with Disabilities.Footnote ³⁶ For both public health and disability scholars, the significance of human rights law derives, inter alia, from the fact that this is arguably the only source of law that legitimises international scrutiny of the standards of treatment of disadvantaged populations, such as irregular migrants with health issues or disabilities, and ensures a multilevel accountability for abusive law, policies and practices that fall within state jurisdictions and sovereign control.Footnote ³⁷

This work synergises a doctrinal analysis of the scope and content of the right to health for irregular migrants in international and European human rights law, including the root causes of inequality of standards and health determinants, with certain items of public health and disability literature to complement the definition and operationalisation of health standards. This entails regarding (human rights) ‘law as a means to an end’, which, in this case, is the realisation of the ‘highest attainable standards of physical and mental health’ for everyone.Footnote ³⁸ This approach means analysing sources of human rights law and legal argumentsFootnote ³⁹ while also mitigating the criticism that a purely doctrinal approach to law would operate within a ‘socio, political, and economic vacuum’.Footnote ⁴⁰ For instance, irregular migration is scrutinised as a subject of legal interpretation and a human experience characterised by actual health, social and institutional vulnerabilities, and health is analysed as a ‘status’ and an ‘entitlement’, in the light of hard and soft law and public health material, keeping in mind the rules of international (human rights) law and ‘striking a balance between foolish utopianism and grim realism’.Footnote ⁴¹

For the purposes of this research, ‘international human rights law’ refers to the UN machinery of human rights, particularly the nine UN human rights treaties and the special procedures of the Human Rights Council.Footnote ⁴² ‘European human rights law’ refers to the instruments adopted in the context of the Council of Europe but excludes the legal standards and case law that have developed in EU law.Footnote ⁴³ The exclusion of EU law is based on the fact that although irregular migration is a shared competence of the EU and its member states, health remains an exclusive competence of member states, albeit one that is supported and complemented by various provisions of the Treaty on the Functioning of the EU. The right to health is stated in the Charter of Fundamental Rights of the EU but applies only within the scope of EU law. The net effect is that the Court of Justice of the EU has pronounced on the right to health of an irregular migrant only once and only in the context of deportation-related inhuman or degrading treatment.Footnote ⁴⁴ Accordingly, there is currently very little to be gleaned from EU law concerning the right to health of irregular migrants. Regarding the regional legal frameworks examined in this research, the choice to exclude from the analysis the instruments of the Organisation of American States and the African Union was made in the interest of avoiding excessively general statements and conclusions on migration and health situations in Africa and the Americas. However, it is worth noting that migration and socioeconomic rights in the American regional systems, which are briefly referred to in Chapter 1 and in the Conclusion, may become suitable subjects for further future research because of the rapid pro homine developments of these systems in the last few years.

As this examination is both expository and evaluative, the norms of human rights treaties are assessed in the light of relevant legal principles of interpretation, case law, jurisprudence, extra-legal sources and interdisciplinary scholarly analyses.Footnote ⁴⁵ Although no hierarchical relation exists between international and regional legal frameworks, all chapters juxtapose and compare the standards developed within the European context – for instance by the binding judgments of the ECtHR – with those elaborated by prevalently non-binding procedures with regard to UN human rights treaties. Although the practices of UN human rights bodies differ in nature and legal value (e.g. case-specific views, state-specific findings on reporting procedures, general comments, reports of special rapporteurs), my position is that these instances of ‘soft law’ are not without legal importance. Indeed, human rights bodies are explicitly mandated to review state practices and perform interpretative activities, inter alia, by either a treaty or a resolution adopted by a state body. Furthermore, they have accumulated an impressive volume of human rights jurisprudence, which has contributed to elaborating broadly shaped human rights standards at the UN human rights level. These, when aligned with the criteria for interpretation of international (human rights) law, can be particularly authoritative.Footnote ⁴⁶ Knowledge of this jurisprudence may prove particularly useful in the European legal context, where human rights discussions are overly dominated by the European Convention on Human Rights (ECHR) framework.

While I link my analysis to the general criteria for the interpretation of international law,Footnote ⁴⁷ the operationalisation of which is ‘not an exact science’,Footnote ⁴⁸ the contribution of human rights bodies to the elaboration and use of certain equalitarian arguments to human rights (vulnerability and non-discrimination, core obligations, positive obligations and the human rights approach to disability) constitutes the conceptual spine of this monograph. These arguments are qualified with reference, as previously mentioned, to certain extra-legal and meta-legal standards, namely, the concepts of ‘primary health care’ and the ‘social determinants of health’, as interpreted by the WHO,Footnote ⁴⁹ which is the guardian of global health law and policy.

Finally, I must restate that although international human rights courts and bodies have contributed to the development of progressively more generous standards concerning irregular migrants and while many institutional follow-up measures have been implemented, the enforcement of these laws and rights-based policies are heavily reliant on the political willingness of state powers to adjust their domestic legal systems to align with internationally recognised norms. This leads me to clarify that this book is primarily – although not exclusively – concerned with the interpretation of human rights law to reduce the gap between the health-related entitlements of irregular migrants and those of the registered population while also respecting the prerogatives of the international and European legal frames. Although references are made to national practices and cases, I do not particularly focus on the implementation or assess the effectiveness of international frameworks in any specific domestic setting.

I.3 The Plan of This Book

In addition to this introduction, this study is composed of five substantive chapters and a concluding chapter. The first two chapters address the root causes of the inability of international law to generate sufficiently clear and consistent standards on the health rights of irregular migrants while highlighting certain progressive trends. Chapters 3–5, respectively, describe and critically analyse three contested areas of international and European human rights as they apply to irregular migrants, namely how thick the protection of their right to health is with regard to access to health care beyond emergency treatment, the social or underlying determinants of health and the unexplored area of migrant mental health and disabilities.

More specifically, Chapter 1, entitled ‘Sovereignty and the Human Rights of Irregular Migrants’, situates the human rights of irregular migrants within the legal frames of reference chosen for this study. This chapter contrasts the principle of sovereignty in international law with the universal personal scope of application of human rights. The tension between the two foundational principles is a major root cause of the oscillation of international and European case law on the rights of irregular migrants between sovereigntist and human-centred tendencies. The trend is also visible in relation to migrants’ entitlement and enjoyment of social rights.

Chapter 2, entitled ‘The Normative Contours of a Vulnerability- and Equity-Oriented Right to Health’, provides an overview of the public health–inspired conceptualisation of the right to health and its correlative obligations in international and European human rights law. It demonstrates a certain engagement of international bodies with the protection of health while also arguing that a structural and conceptual bias against socioeconomic rights has posed an obstacle for the universal protection and accountability of the right to health of vulnerable people, a category to which irregular migrants de jure or de facto belong. For instance, the analysis reveals a disjunct between regulatory obligations and high-threshold rights within the ECHR framework on the one hand and the targeting of comprehensive care while respecting non-discrimination in the ICESCR’s typologies system on the other. The chapter concludes with a close examination of the conceptual and normative value of vulnerability in human rights theory and practice, which should also apply in relation to the implementation of an equity-based right to health.

Chapter 3, entitled ‘The Right to Health Care of Irregular Migrants: Between Primary Care and Emergency Treatment’, builds on the structural and conceptual challenges outlined in the preceding chapters to describe, compare and analyse the international and European jurisprudence on the right to health care or medical care of undocumented people. The assessment uncovers several inconsistencies. While international human rights law elaborates, inter alia, on the concepts of ‘primary health care’ and non-discrimination of vulnerable people, including irregular migrants, in its scope of application, European human rights law entitles irregular migrants to a level of health protection that equates to ‘urgent’ or ‘life-saving’ treatments. Although international human rights bodies employ vulnerability and core and positive obligations to urge states to implement measures in this area of law and policy, the chapter recommends a more substantive-oriented approach to health care obligations by international bodies aligned to the accessible level of health care specified in the WHO recommendations on ‘primary health care’ and greater rigour and consistency in health-related terminology and legal arguments to increase persuasiveness. In both this and Chapter 4, special remarks are dedicated to irregular migrant children and to women’s access to reproductive services and care.

Chapter 4 is entitled ‘The Determinants of the Health of Irregular Migrants: Between Interrelatedness and Power’. This chapter explores whether international and European human rights laws provide for the determinants of health of irregular migrants. The determinants of health, together with health care, are part of the scope of the right to health and constitute a particularly important area within the field of public health. Indeed, the enjoyment of human and social rights that support the determinants of health is in keeping with the concepts of empowerment, indivisibility, interrelatedness and vulnerability, which ground human rights law. However, an examination of the applicable human rights jurisprudence reveals that where irregular migrants are concerned, these narratives often – but not always − dissipate in the face of the imperative, as states see it, to control immigration, resulting in the social rights – other than the right to health care − of irregular migrants being guaranteed at only a basic or survival level.

Chapter 5 is entitled ‘Mental Health, Irregular Migration and Human Rights: Synergising Vulnerability- and Disability- Sensitive Approaches’. This chapter evaluates what the international and European human rights frameworks can offer, in terms of standard setting and avenues for international legal development and protection, to those irregular migrants who experience either mental health difficulties or have a psychosocial disability. The analysis in this chapter extends the normative frames of reference to encompass ‘disability’, which is reconceptualised in the Convention on the Rights of Persons with Disabilities (CRPD) as a transformative status and a human rights argument. This chapter triangulates human rights, public health and disability-sensitive arguments to assess the relations between mental health and human rights in the context of irregular migration in human rights law and jurisprudence. While the ECtHR’s deportation cases concerning people with mental health issues tend to reflect an overall emergency-oriented and predominantly biomedical approach to mental health, several UN human rights treaty bodies set out a more holistic conceptualisation of mental health and psychosocial disability. The latter approach promotes non-discriminatory psychosocial interventions to guarantee access to community-based mental health care services and the underlying determinants of mental health for everyone regardless of migration status.

The Conclusion synthesises the fragmented standards of the chosen legal frameworks on the subject, restates each chapter’s findings, makes recommendations for the progressive development of the law and highlights areas worthy of further research.