Het recht op zorg voor de gezondheid van onrechtmatig verblijvende vreemdelingen in Nederland

Abstract

Migrants without a valid residence permit (‘undocumented/irregular migrants’), yet staying in the Netherlands, like all other residents, have the right to the greatest possible degree of health and access to health care. The right to health, recognized in several human rights instruments, applies regardless of a person’s legal status. The right to health care for irregular migrants, however, may be at odds with the immigration policy. The immigration policy aims at preventing illegal residence and therefore will not provide full health care as an incentive for immigration. Irregular migrants are, as a result, excluded from social services, including health insurance. This exclusion of provisions (the 'linking principle') is regulated in the so-called Koppelingswet (Linkage Act; 1998). Irregular migrants do have a right to medically necessary care.

This study examines, how the right to health care of irregular migrants in the Netherlands is safeguarded. Based on court rulings, this study assesses, how the courts test the linking principle against international provisions and judge the consequences of excluding undocumented people from health insurance laws. The study, furthermore, examines the bottlenecks that occur with regard to (access to) the provision of health care to irregular migrants. The themes of financing and medically necessary care stand out as main issues. Finally, the right to health care for children without legal residence and the expulsion of seriously ill foreign nationals to their country of origin are taken into consideration.

Despite the fact that the linking principle has been accepted by the courts, it is shown, that the right to health care of irregular migrants in the Netherlands is under pressure for several reasons. This study shows that (access to) health care for irregular migrants is in need of improvement and it proposes concrete steps towards more compliance to standards of international law.