Social Rights for the ‘Nearby Needy’?
An undocumented Somali asylum seeker sexually assaulted a ten-year-old girl. ‘It was a matter of time’, his attorney says. How about the right to health care and treatment for the (mentally) ill for whom the State is not willing to take responsibility?
A striking news item, that showed up everywhere in the Dutch (online) media, almost two weeks ago: ‘Girl (10) assaulted in Vluchtkerk’. The ‘Vluchtkerk’ (Refugee Church) is an occupied church in Amsterdam where asylum seekers who are not welcome in the Netherlands have spent the cold winter months, while fighting for recognition of their basic needs and wants. One of them, as now became clear, in January assaulted the daughter of one of the many volunteers supporting the Vluchtkerk initiative.
Particularly striking was the story of the Somali asylum seeker’s attorney. For years he had been trying to organise treatment for his client, who had been diagnosed as suffering from chronic psychosis and hallucinations. Given that in 2010, the Office for Medical Advice of the Dutch Immigration and Naturalisation Service had concluded that without treatment Ali H.’s behaviour could become life threatening, to himself as well as to others, he argued that the materialisation of this risk had only been ‘a matter of time’.
As some might know, the Conference of European Churches (CEC) has filed a complaint before the European Committee of Social Rights (ECSR), that decides on collective complaints relating to the rights laid down in the European Social Charter. This complaint concerns the fact that the Dutch government does not respect the basic rights to housing, clothing and nutrition of undocumented persons (indeed, also those staying in the Vluchtkerk). What the CEC is fighting for is recognition of the fact that access to certain social rights cannot be dependent on a person’s immigration status. Apparently, and Ali H.’s case is likely only one of many examples, the undocumented have no effective rights to what they need most.
The issue also made me think of the case law of the European Court of Human Rights (ECtHR) on expulsions and the right to a certain level of health care, which I was researching at that moment. The European Convention on Human Rights does not contain a ‘right to health’ or something similar, and the Court is rather hesitant to create a positive obligation for States to not remove seriously ill asylum seekers to their home country when the health care available there will clearly result in the deterioration of their health. Expulsion of a seriously ill person, who is close to death and will then die under the most distressing circumstances, can be contrary to Article 3 of the Convention. When the individual’s illness is not at a terminal stage however, the Court holds that the Convention is essentially directed at the protection of civil and political rights and refuses to find a violation – though what is awaiting him might just as well turn into ‘inhuman or degrading’ suffering.
An interesting article by Mantouvalou sheds light on the issue. By construing ‘a duty to rescue the nearby needy’, she proposes that even when the Convention cannot save all those suffering from severe health care conditions in a certain country, it could protect asylum seekers ‘nearby’. I agree, at least to the extent that something in the Court’s case law can perhaps be changed to accommodate more than just those who are already terminally ill. In any case, this is a topic that needs to be further reflected upon. As the cases of Ali H. and the Vluchtkerk also show, there is a gap between the socio-economic guarantees asylum seekers – either before or after leaving the country where they hoped to find refugee – desperately need, and what they, with the help of legal tools, can truly get. Whereas the route via the ECSR is likely to bring about significant, though not immediate, legally binding outcomes, there also lies a task for courts like the ECtHR to truly engage in the intricacies of this predominant, and ever-growing issue.