PICUM’s Director Michele LeVoy was heard last week by the French social affairs and finance inspectorates on the issue of access to health care for undocumented people. The hearing is part of an inquiry by the French Inspection générale des affaires sociales, IGAS (Inspectorate General for Social Affairs) and Inspection générale des finances, IGF (Inspectorate General for Finance) evaluating the financial sustainability of the Aide médicale d’Etat or AME, the French scheme that provides access to health care for undocumented people.

Civil society organisations in France fear that this exercise is likely to result in the tightening of the AME, restricting access to health care for people already facing significant precarity. Concerns about such plans have been growing over the last couple of months and have received increasing media coverage on national newspapers, with a major political debate approaching on France’s migration policy, to be co-chaired by the Minister of Health and the Minister of Interior.

For 20 years, France has had in place legislation that provides comprehensive health coverage for people in an irregular situation, making it one of a handful of European countries, such as Belgium, Italy, and Spain, where there has been a genuine effort to achieve universal health care, leaving no one behind.

In the country, health insurance is mandatory and over 90% people are covered by the public health insurance. Undocumented migrants, however, cannot benefit from health insurance – but those who have resided more than three months in France and whose monthly income is less than 720 € are entitled to AME.

AME provides free access to nearly all healthcare services available to French nationals, including care related to sexual and reproductive health such as pregnancy, delivery, family planning, contraception and abortion. A reported 300.000 people benefit from the AME, at a cost of just 0,3% of France’s total health budget.

The AME, like every system, has its shortcomings. For instance, each French administrative area (département) varies in how it applies the regulations around eligibility for AME and can decide which documents it will accept to prove the residence and financial eligibility requirements. And very little effort is made to promote awareness among target populations of the rights under the AME.

Still, the French model remains an important example in Europe of universal health coverage that does not discriminate, based on a person’s residence status. Public health strategies should not vary based on arbitrary categories. France joined other member states of the World Health Organisation which adopted a resolution on migrant health in 2008 and 2018, and a strategy and action plan in the European region on migrant health in 2017. It has also committed to achieving truly universal health care by 2030, under the Sustainable Development Goals. Restricting the AME would represent an alarming step backwards for a country with a long history of promoting human rights and equality.

PICUM has, since our very beginning, been campaigning for access to health care for everyone, regardless of residence status. Health is a human right, and we are all diminished when distinctions are made between people when it comes to accessing essential services. Inclusive policies are also good for public health, emphasising prevention and health promotion, improving outcomes for children, families and communities, and reducing the costs of treating health emergencies that could have been mitigated or avoided through early intervention. Restricting access to health care based on residence status violates medical ethics, forcing health professionals to prioritise administrative eligibility requirements over their duty to first do no harm.

The French inspectorate IGAS is expected to table its report on the AME in the course of October, when it will be discussed by the two chambers of the French parliament.

This blog was written by Matthew Rice, Scotland Director of the Open Rights Group, a charity that protects the digital rights of people in the UK including privacy and free speech online. Open Rights Group is challenging the “immigration exemption” in the UK 2018 Data Protection Act before the national courts, which prevents people from accessing and checking their personal data when collected for vague immigration purposes.

Context: the “hostile environment”

The United Kingdom’s hostile environment policy towards migrants is a set of administrative and legislative measures designed to make staying in the country as difficult as possible for people without leave to remain. It has been a pernicious issue, seeping into areas of housing, education, and healthcare. Immigration enforcement has been gathering data from all these areas, in sometimes undeclared data sharing agreements.

In this climate, the right of access to data is a crucial, essential right. Any mistake could have drastic effects on an individual’s right to remain in the country. In a context where data from multiple sources are used to make important decisions, the immigration exemption in the UK’s 2018 Data Protection Act is yet another blow to the fundamental rights of migrants.

Hollowing out fundamental rights

The immigration exemption allows an entity with the power to process data (known as a “data controller”) to circumvent the right of an individual to access data held about them if it would “prejudice effective immigration control”.

The inclusion in the 2018 Data Protection Act of an immigration exemption is unprecedented in the UK’s history of legislating in this field. No such provision existed in the previous Data Protection Acts (1984 and 1998 ones). It was debated during the 1983 Bill negotiations but never made it further, and was described by the then-chair of the Data Protection Committee as “a palpable fraud upon the public if … allowed to become law.”

The exemption restricts other data rights, such as the right to:

– object to the processing of one’s data

– restrict the processing of one’s data

– have one’s personal data deleted.

In addition, the exemption frees data controllers from their responsibility to provide information to the person concerned when their data is collected, or to inform them when information is collected from other sources, like a school, employer, or local authority.

Open Rights Group, a human rights campaigning organisation focused on the protection of privacy in the digital age, and the3million, a grassroots campaign representing the interests of EU citizens living in the United Kingdom, have very real concerns that the breadth and opacity of the immigration exemption represent a threat to the rights of foreigners living in the country. In an immigration environment that is both hostile and error-prone, the fundamental right to data protection, contained in the EU Charter of Fundamental Rights, needs to be safeguarded. This exemption strikes directly at the essence of this fundamental right. That is why our organisations are challenging the Data Protection Act before the High Court of Justice in England and Wales, under a judicial review procedure.

This exemption is not the type of exemption contemplated by the EU General Data Protection Regulation (GDPR). It is a derogation that the UK Government has chosen to exercise and formulate themselves. While derogations are possible under the General Data Protection Regulation, they must satisfy a series of strict tests.

Under Article 23(1) of the GDPR, national law may restrict the scope of obligations and rights when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society.

Further, under Article 23(2), the measures must contain specific provisions, where relevant as to:

• The purposes of the processing or categories of processing
• The categories of personal data
• The scope of the restrictions introduced
• The safeguards to prevent abuse or unlawful access or transfer
• The specification of the controller or categories of controller
• The storage periods
• The risks to the rights and freedoms of data subjects; and
• The right of data subjects to be informed about the restriction, unless that may be prejudicial to the purpose of the restriction.

The Essence of the Right to Data Protection

There is growing consensus among scholars about the “essence” of a fundamental right. Tuomas Ojanen, Professor of Constitutional law at the University of Helsinki, refers to three crucial components. First, the essence of a fundamental right cannot be determined based on the text of the Charter alone. Instead, the identification of the essence is a matter of contextual interpretation. Second, the same fundamental right can give rise to more than one legal norm: for instance, the right to privacy includes at the same time the responsibility to refrain from interfering with an individual’s privacy, and the right to access one’s data. Third, all fundamental rights, including those that allow for derogations, such as the right to privacy, possess an inviolable essence that cannot be restricted.

Taking the immigration exemption and its effect on the right to data protection under Article 8 of the Charter of Fundamental Rights, we can peel away to try and understand what is the essence of the right to data protection.

Article 8(2) explains that the right to data protection includes the right of access to data that has been collected, and the right to have it corrected. When considering immigration enforcement, it is worth remembering that mistakes happen, and happen often. The Home Office has incorrectly sent letters to EU nationals informing them that they were to be deported from the UK. In addition, back in 2017 the Independent Chief Inspector of Borders and Immigration found error rates of 10%, where the Home Office were denying individuals bank loans after immigration checks.

No system is foolproof; that is why access to information, and the ability to rectify inaccuracies are all the more important. By removing the right of access to data, the immigration exemption risks undermining the very goal it is trying to achieve: effective immigration control. Effective control should allow individuals to correct inaccurate information and thus prove their right to remain.

Another legal norm that may flow from that fundamental right is the right to good administration. While the right to data protection has permissible limitations, a right of access to data is at the essence of this fundamental right. The importance of access to data held about you – and, in the immigration context in particular, access to data that is used to make decisions about you – is one of the overarching arguments in the challenge against the exemption.

The exemption also fails to satisfy the Article 23(2) tests under the GDPR. The test of “prejudice” requires assessing whether a measure has clear boundaries. The UK Government, however, have been reluctant throughout to explain what it aims to achieve, concretely, with the exemption. Add to this the fact that there is no limitation on the type of data that entities, public or private, that can rely on the immigration exemption and the scope of the exemption is suddenly as wide as the broader hostile environment – touching on areas like health, social care, education, or private actors involved in immigration services.

Open Rights Group and the3million are seeking to have the exemption removed from the Data Protection Act by demonstrating that it is unlawful and plainly incompatible with fundamental rights.

This exemption is a blunt instrument serving a policy that has tainted Britain’s reputation as a tolerant and welcoming country. It is an intolerable departure from the essence of fundamental rights, and has none of the clear limitations that are required by the General Data Protection Regulation.

Challenging this exemption is a matter of resisting the erosion of protections that are fundamental to our democracy and to our privacy in an increasingly digital world.

This is a guest post from our Belgian member Rob Kaelen, Project Manager at Plateforme Mineurs en Exil/Platform Kinderen op de Vlucht. The Platform has been coordinating a national campaign against the detention of migrant children since 2017.

In October 2014, the Belgian Government coalition led by Charles Michel (centre-right) announced its plans to build a new detention centre next to the Brussels Airport to detain migrant children and their families. After two years of construction works and almost 2 million euros of expenses, Belgium effectively started locking up children in August 2018.

Since the announcement made by the Government, the Platform Minors in Exile has mobilised to try and convince the Government, opposition parties, civil society organisations and the larger population that detention of children constitutes a violation of their fundamental rights, that it is ineffective, and that it is not necessary, as alternative measures exist.

Before the new policy came into force, Belgium had stopped locking up children for 10 years and used alternatives instead. In fact, Belgium stopped detaining children in 2008 in anticipation of the condemnations by the European Court of Human Rights and developed the so-called “Return Houses” instead. Return Houses are apartments or houses where undocumented families are housed until their administrative situation is clarified. In these Houses, at least one parent must always be present, and the family is not allowed to spend the night elsewhere. On paper, families are still detained, but in practice, the children are allowed to move freely: they can go outside to play, go grocery shopping, or go to school. Even though the Return Houses must be improved in terms of social support and respect for fundamental rights, we still see them as a huge improvement over a closed centre. Unfortunately, the government felt that the Return Houses are not efficient enough and that detention is still needed, as a last resort, to return migrant families.

Since the opening of the closed centre, the authorities have detained a total of 22 children. The ages of these children ranged from a few months to 17 years, with 15 of them being 10 or younger. In the few months that the centre has been used, a doctor and the 2 Belgian children’s ombudsmen repeatedly asked the government to stop detaining children, citing the negative impact detention had on them.

https://www.facebook.com/pointpunt/videos/460379874733904/

The campaign

The campaign against the detention of children was launched by the Platform Minors in Exile and several of its members: Caritas International Belgium, CIRÉ, Jesuit Refugee Service Belgium, Vluchtelingenwerk Vlaanderen and Unicef Belgium (Amnesty International joined the campaign in August 2018). We wanted the campaign to have a simple message which could appeal to people’s core values. This is how we chose our campaign slogan “You don’t lock up a child. Period.”.

We developed a campaign website, www.youdontlockupachild.be, which provides information about child detention in Belgium and around the world, expert opinions, and our demands to the government. We launched our campaign in June 2017 with a clip, which has been viewed over 250.000 times.One of our aims was to show the huge consensus that exists on this issue among experts, civil society organisations and among the population itself. This is why we invited hundreds of organisations to join our campaign. As of May 2019, our campaign is supported by 325 Belgian organisations, which all agree on the fact that migrant children should never be deprived of their liberty. End of 2018, we also launched a petition, which has since gathered almost 50.000 signatures.

Belgian elections

The Belgian national context provides for interesting opportunities for advocacy work. At the Platform, we were able to meet most political parties to try and convince them that detention is a blatant violation of children’s rights and that there are many interesting opportunities for developing and improving alternatives to detention.

Detention of migrant children has become an important discussion point in political debates and analyses, and was included for instance in “electoral tests” which match the voter’s responses to the positions of the political parties. For our part, we developed an overview of party positions on the issue of child detention, to inform the population but also to try and convince parties that might be on the fence to take a clear stance against child detention.Interestingly, positions are very distinct when comparing both sides of the Belgian linguistic border. All French-speaking parties except one (former Prime Minister Charles Michel’s party, Mouvement Reformateur, centre-right) have positioned themselves against child detention and for an unconditional prohibition on child detention. In Flanders, on the contrary, only two parties took this position (the left-wing Partij van de Arbeid and the green party Groen), as even the Flemish Socialists (sp.a) defend child detention when used as a last resort.

Most importantly, all parties opposing child detention have included this issue in their political programme for the next 4 years. Our hope is that they will further include it among their conditions to take part in a government coalition after the elections.

Another positive sign came with a recent judgment by the Belgian Council of State, which found that child detention in the newly built closed centre constitutes a violation of the fundamental rights of the detained, amongst other because of the persistent and loud noise caused by the Brussels Airport air traffic.

We hope that this judgment can bolster our demands and incite our future government to outlaw migrant child detention once and for all and to invest fully into alternatives to detention that are based on case management and let children live in the community. Because you don’t lock up a child. Period.