Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 249
CERD has affirmed that States have the obligation to “[e]nsure [. . .] the
right of non-citizens to an adequate standard of physical and mental
health by, inter alia, refraining from denying or limiting their access to
preventive, curative and palliative health services”. 1016 The CESCR has
determined that “[a]ll persons, irrespective of their nationality, residency
or immigration status, are entitled to primary and emergency medical
care.” 1017 Nevertheless, this is a minimum requirement. When a healthcare
system normally provides treatment beyond primary and emergency
medical care, the exclusion of asylum-seekers, or documented
or undocumented migrant workers and members of their families from
the system would violate Article 12 ICESCR read together with Article 2,
Article 5 ICERD, or (in cases involving children) Article 24 CRC. 1018
The CRC has stressed that, “[w]hen implementing the right to enjoy the
highest attainable standard of health and facilities for the treatment of
illness and rehabilitation of health under article 24 of the Convention,
States are obligated to ensure that unaccompanied and separated children
have the same access to health care as children who are [. . .]
nationals.” 1019 It also pointed out that, under Article 39 CRC, States
have the obligation to “provide rehabilitation services to children who
have been victims of any form of abuse, neglect, exploitation, torture,
cruel, inhuman and degrading treatment or armed conflicts. In order
to facilitate such recovery and reintegration, culturally appropriate and
gender-sensitive mental health care should be developed and qualified
psychosocial counselling provided.” 1020 The Executive Committee of
UNHCR has stressed that the minimum core of protection for refugee
or asylum-seeker children is higher than for adults. On the right to
health, they have an immediate right to the highest attainable standard
of health, 1021 and States are under the obligation to provide “medical or
other special care, including rehabilitation assistance, to assist the social
reintegration of refugee children and adolescents, especially those that
are unaccompanied or orphaned.” 1022 The Human Rights Committee
1016 CERD, General Recommendation No. 30, op. cit., fn. 18, para. 36 (based on Article 5(e)(iv)
ICERD), and CESCR, General Comment No. 14, op. cit., fn. 37, para. 34, which specifically
includes asylum-seekers and illegal migrants.
1017 CESCR, General comment No. 19, op. cit., fn. 950, para. 37.
1018 See, Concluding Observations on Italy, CESCR, op. cit., fn. 1015, paras. 123 and 138; Concluding
Observations on Belgium, CESCR, op. cit., fn. 1015, paras. 21 and 35; Concluding
Observations on France, CESCR, op. cit., fn. 1015, paras. 26 and 46. See also, Concluding
Observations on Slovenia, CRC, op. cit., fn. 1015, paras. 54–55; Concluding Observations
on the Netherlands, CRC, op. cit., fn. 1015, paras. 51–52; Concluding Observations on Sweden,
CRC, 2009, op. cit., fn. 209, paras. 60–61; Concluding Observations on Norway, CERD,
UN Doc. CERD/C/NOR/CO/18, 19 October 2006, para. 21.
1019 CRC, General Comment No. 6, op. cit., fn. 138, para. 46.
1020 Ibid., para. 48.
1021 Conclusion No. 84, UNHCR, op. cit., fn. 214, para. (a)(iii).
1022 Ibid. para. (b)(vi).