Asylum Seekers: the Search for Basic Human Right to Healthcare in Industrial Countries

• Jurisdiction: United States,Federal
• Citation: Vol. 35 No. 1
• Publication year: 2021
• topic: Immigration Law,Health Law,Public Sector Law

Asylum Seekers: The Search for Basic Human Right to Healthcare in Industrial Countries

Marlaina Wright

ASYLUM SEEKERS: THE SEARCH FOR BASIC HUMAN RIGHT TO HEALTHCARE IN INDUSTRIAL COUNTRIES

Introduction

Imagine an individual living peacefully, going about their normal life. Suddenly, due to tragic events transpiring in their country that affect or violate their human rights, the individual must flee to safety leaving their life and once-had stability behind them in order to obtain safety. The individual is scared, traumatized, injured, and barely keeping a grip of their will to go on while trying to seek refuge. They then think of nearby countries, or countries with reputations for accepting and helping their kind. Upon arrival, the individual then expects assistance for their kind and access to necessities such as food, a place to rest, and healthcare for their well-being. Is the individual afforded such access? contrary to international agreements, this depends on the country.

Every day, there are many individuals that venture into other countries for various reasons including to seek employment options or educational opportunities; to flee from violence, war, hunger, or extreme poverty; or to escape consequences and problems due to climate change or natural disasters.¹ An asylum-seeker is an individual who has left their country and is seeking protection from persecution or other serious human rights violations in another country, but has not been legally recognized as a refugee, and must wait for a decision regarding their asylum claim.² "By the end of 2017, the number of people seeking asylum worldwide rose to more than three million."³ When seeking asylum, many asylees believe that going to developed, industrial countries is the best route for achieving safety, educational opportunities, and a higher standard of living.⁴ They also likely expect to receive improved healthcare.⁵ However, their expectations may not match the reality of what they find in such countries. The way asylees are treated and the steps they must undergo to obtain healthcare can vary widely from country to country.

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The United States has had an influx of individuals that seek asylum daily; however, the treatment and process that individuals must go through changes with each new Presidential administration.⁶ For example, the Trump Administration recently promulgated the "Safe 3rd country" rule on migrants seeking asylum, stating that the country asylees pass through en route to the United States is the country in which they must first apply for refugee status.⁷ The United States is not the only developed country where individuals seek asylum—some also seek asylum in places like Germany or Switzerland.⁸ However, other developed countries, such as Japan, tend not to be viewed as welcoming for asylees and receive fewer requests.⁹

With countries having such different approaches to granting asylum, what must an individual go through in order to access healthcare in such developed and wealthy countries? Access to health, or medical care, is a fundamental human right, and every country has ratified at least one international human rights treaty recognizing it as such.¹⁰ Frequently stated, "[t]he right to the highest attainable standard of health is a human right recognized in international human rights law,"¹¹ however, there are many asylees being sent away or not afforded their rights, even by the wealthiest of countries.¹² In their efforts to follow such laws, many countries have stated before international human right bodies and within national legislation what it means to provide asylum seekers with healthcare.¹³ These countries have stated that they would not provide the same

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level of protection to migrants as they do their own citizens, but rather provide healthcare in terms of essential care or emergency health care only.¹⁴ Countries interpret these concepts differently which then leads to discriminatory acts toward asylees and creates challenges for individuals seeking basic healthcare.¹⁵

This Comment explores the differences and similarities in developed countries' varying approaches to providing asylees access to domestic healthcare systems, focusing on the policies and procedures of the United States, Japan, Germany, and Switzerland, as high-income countries. This Comment serves to reveal and analyze the problems that arise when asylees seek to invoke the international human right to health, to propose a Global Health Agreement for all countries to adopt, and to suggest a new policy framework for the United States to implement.

Part I of this Comment provides an overview of the asylum process and identifies the health benefits afforded to asylees in the specified countries. Part II identifies and discusses the criticisms and policy-based barriers in regard to asylees access to healthcare in the specified countries. Part III analyzes the similarities and differences between the countries to identify common patterns and challenges, and to then create potential solutions for all countries to adopt. Finally, Part IV proposes policies that the United States could initiate to adhere to international human right laws and proposes a Global Health Agreement for all countries to adopt and incorporate within their governments.

I. The Process of Seeking Asylum and the Current Health Benefits Afforded to Asylum Seekers

The right to health was recognized as a human right in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).¹⁶ Article 12 of the ICESCR states the following:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

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a. The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
b. The improvement of all aspects of environmental and industrial hygiene;
c. The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
d. The creation of conditions which would assure to all medical service and medical attention in the event of sickness.¹⁷

Germany, Japan, Switzerland, and 170 other countries signed and ratified the Covenant; the United States signed but never ratified the agreement.¹⁸ By signing the Covenant, these countries agreed, in principle, to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."¹⁹ The United States, however, has never fully committed to this concept for its citizens, nor is it a right enshrined in the U.S. Constitution. Not surprisingly, the United States also has not recognized that right for asylees present within its borders.²⁰

Despite nations not strictly conforming to the treaty's principles, the sentiment of recognizing the right to health as an obligation owed to all humans is echoed in the World Health Organization's (WHO) Constitution.²¹ The WHO is "responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries, and monitoring and assessing health trends."²² However, as discussed below, in various countries,

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asylees' enjoyment of the right to health is often limited because they are migrants other factors like discrimination (being non-citizens), language and cultural barriers, and their legal status.²³ Many countries have defined their health obligations toward non-citizens in their country in terms of essential or emergency health services only.²⁴ Nonetheless, the meaning of essential or emergency health services varies by country, and distribution of health services is often left in the hands of individual health-care staff, leading to practices and laws that may be facially discriminatory or applied in a discriminatory way.²⁵

Common difficulties faced by asylees with respect to their right to health include:

• Inadequate or non-existent coverage by State health systems;
• An inability to afford health insurance in the host countries;
• Little access to health and social services;
• Difficulties accessing information about health matters and available health services;
• Poor detention center conditions which are conducive to the spread of diseases; and
• Inadequate information provided by the host country.²⁶

This is especially troubling because several other treaties and agreements obligate countries to protect and promote human rights including the right to health.²⁷ Unfortunately, the United States is one of a handful of high-income countries in which asylees face all of the above difficulties. The reasons

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underlying this problem are complex and relate both to U.S. asylum process procedures and structural constraints.

The procedures and policies for obtaining asylum, current government background and right to health, and the current rights to health afforded to asylum seekers in the United States, Japan, Germany, and Switzerland are presented below.

A. The United States

1. Obtaining Asylum in the United States

As written in 8 U.S.C.S. § 1158(a)(1):

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title [8 USCS § 1225].²⁸

An individual is eligible to be granted asylum as long as they have applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland...