The right to health of irregular migrants: An exploration of enabling and constraining factors in international and European human rights law
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This doctoral thesis asks whether international and European human rights law are substantially and structurally equipped to enhance the right to health of irregular migrants. These legal frameworks encounter structural and conceptual hurdles where the social rights of irregular migrants are concerned. One such challenge is the tension that exists between sovereign immigration enforcement and ‘universal’ human rights law, which results in limitations on the personal and material scope of the latter. Another crucial issue is the uneven approach to socio-economic rights vis-à-vis civil rights in human rights law and practice, which reduces the normative force of the international right to the highest attainable standard of physical and mental health. These factors have led the European Courts of Human Rights, the most authoritative European human rights adjudicator, to conceptualise the right to health of irregular migrants in terms of urgent and exceptional medical measures only. This trend is inconsistent with the principle of the indivisibility of human rights and with the jurisprudence of several United Nations Human Rights bodies. Indeed, among them, the Committee on Economic Social and Cultural Rights (influenced by the approach of the World Health Organization) insists that essential primary health care, core obligations, and the determinants of health should apply to everyone and should target vulnerable people in particular. The European Committee of Social Rights locates itself half-way between these positions and, while struggling with a limited competence ratione personae, has engaged with an extensive interpretation of rights. The case study of Italy demonstrates that a right to essential health care for irregular migrants – the enjoyment of which is guaranteed by a separation (called ‘firewalls’) between immigration law enforcement and public service providers – is addressed in the legal system and administrative practice, although it does not receive full constitutional protection, and international and European law have made only limited contributions to shaping it.
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