Irish Centre for Human Rights Blog

Dr Stefano Angeleri is a Postdoctoral Researcher and Project Manager with FRANET at the Irish Centre for Human School of Law, NUI Galway.

A shorter version of this post was originally published on the blog of the Global Initiative for Economic, Social and Cultural Rights. 

The coronavirus pandemic and the containment measures implemented in Ireland, and worldwide, have undoubtedly affected lifestyles and living conditions but they have also drawn everyone’s attention to the importance of a functioning public health system and accessible social protection mechanisms. The Irish ‘public health first’ approach and the adoption of vulnerability-targeted measures during the early months of the crisis deserve some praise from a human rights perspective, even though governmental ‘breakthroughs have not occurred across all economic, social and cultural (ESC) rights equally’ and the system has been unable to protect everyone’s life (e.g. people living in residential settings). A course of action which prioritises vulnerable people’s social needs is particularly welcome when we consider that Ireland is a country where most ESC rights are not recognised as truly ‘fundamental’ rights in the constitutional edifice, despite the repeated recommendations of the Irish Human Rights and Equality Commission pushing for their constitutional recognition.

Here too, the pandemic may constitute an opportunity for redesigning laws and policies at different levels of governance to genuinely realise ESC rights, which are as critical as civil and political rights, especially for vulnerable populations. Like other crises, the impact of Covid-19 exacerbates social inequalities and disproportionately reduces the wellbeing of already disadvantaged people. It is intuitive that those who have to struggle against systemic discrimination, social exclusion or poverty are simply less equipped to bear periods of unemployment and stay-at-home orders or adhere to health and safety recommendations. For this reason, the socio-economic conditions and the rights of the elderly, homeless people, Roma, Travellers, domestically abused people, children and adults with disabilities, asylum seekers and undocumented migrants are of particular concern in these challenging times. 

In particular, the 17,000 undocumented migrants living in Ireland, who are at particular risk of socio-economic destitution in normal times, may experience even worse living conditions in these challenging circumstances. They hide from public authorities for fear of deportation and can generally only rely on informal and often unsafe work, with limited legal and social protection, to make a living. 

In this country of less than 5 million inhabitants and an advanced economy, access to social benefits and free-of-charge health care is based on an assessment of a series of eligibility criteria, including having the right to reside in the country and fulfilling a condition of ‘habitual’ or ‘ordinary’ residence, with wide margins of administrative discretion. As a result, in ‘normal times’, undocumented migrants are excluded from the enjoyment of several social rights: They are can receive emergency treatment in hospital but are essentially prevented from accessing any social benefits, though some charitable initiatives offer them free healthcare and some social services.

During the early days of the pandemic, the Department of Justice and Equality assured Migrant Rights Centre Ireland – an NGO which has long campaigned for ‘justice for the undocumented’ – that ‘there will be no data sharing between Government departments on undocumented migrants’ during the Covid-19 pandemic. As explained by the European Commission against Racism and Intolerance of the Council of Europe, ensuring the separation between public service provision (which is critical for human rights) and immigration enforcement is the best way of guaranteeing the effective enjoyment of social rights, which, otherwise, would be merely theoretical. These measures of separation (‘firewalls’) prevent the sharing of data on the identities of undocumented service users between government departments and prohibit immigration enforcement in essential service facilities.

All people – documented or undocumented – can apply for hardship payments and access information on social welfare services without fear of being reported to the immigration authorities. In particular, the ‘Covid-19 pandemic unemployment payment’ has been offered to all people who have lost their job, regardless of migration status. Other emergency one-off payments, such as the ‘urgent needs’ and ‘exceptional needs payment’, are also available regardless of migration and employment status. However, to apply for these payments, it is necessary to have a PPS number: only people who already have this public services identifier – which normally exposes them to potential data sharing between government departments – can easily access the above social payments. Obtaining a PPS number in pandemic times is challenging as the Department of Social Protection has temporarily postponed the regular PPS number allocation process and replaced it with an email-based application process. Finally, examples of individual cases where people were denied payments based on their immigration status were recorded.  

Anyone in Ireland, regardless of their migration status, can arrange to be tested for Covid-19 and receive treatment using any general practitioner as a gatekeeper if they are able to pay the related fees. Furthermore, the Health Care Executive and Safetynet have made necessary medical care available to irregular migrants and other vulnerable communities via the Covid-19 Community Assessment Hub in Dublin. While the health system will not share information with immigration authorities, health care charges remain a significant barrier to access, which hospitals can decide to waive only in situations of particular hardship and with a wide margin of discretion.

Although imperfect, these measures have enhanced Ireland’s level of compliance with international and European human rights duties, which include, for the UN Human Rights Committee, positive obligations to guarantee access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life. This is not enough though as Ireland should progressively move towards the full realisation of ESC rights for everyone, while ensuring their core content. In fact, the UN Committee on Economic, Social and Cultural Rights has repeatedly stated that state authorities must provide ‘a minimum essential level of benefits to all […] that enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education’. Similarly, the European Committee of Social Rights has held that states should provide ‘emergency social and medical assistance to everyone, including irregular migrant adults, to meet their urgent and immediate needs, such as shelter, food, emergency medical care and clothing’, clarifying that the ‘urgent or serious’ nature of these needs should not be interpreted ‘too narrowly’. 

Therefore, the realisation of the human right to health – in normal times and during health and economic crises – requires more than an emergency medical approach: its scope embraces the provision of preventive, curative and palliative health care as well as the adoption of measures that promote other social determinants of health. These include enjoying empowering living conditions without disproportionate differentiations based on migration status. As far as affordable health care is concerned, several studies, including one carried out by the Fundamental Rights Agency of the European Union, have reported that ‘providing regular preventive care [to irregular migrants], as opposed to providing only emergency care, is cost-saving for healthcare systems’.

But what about health and social needs of undocumented migrants after August, when pandemic measures may be lifted, and the economic crisis is likely to continue? The aforementioned emergency policies represent progressive steps towards an enhanced realisation of the ESC rights of a particularly vulnerable group, where before there was a vacuum. These are significant ‘appropriate means’ of realisation under international human rights law (Article 2.1 International Covenant on Economic Social and Cultural Rights). Though social provisions for undocumented people are not regulated via a stable legislative measure, nor do health care and social security constitute fundamental legal rights, an argument against any unjustified retrogressive measure curtailing the advancement of the core content of social rights of undocumented migrants can be put forward. As ESC rights are to be realised progressively, there is a strong presumption that retrogressive measures (which are backward steps in human rights realisation) are not permitted. This is particularly the case in economic downturn with a disproportionate detrimental impact on the worst-off and when the special vulnerability to precarious living, health and employment conditions of migrants in an undocumented situation is heightened.

It is legitimate to ask whether this crisis may trigger reforms that recognise the fundamental nature of ESC rights and their essential role in building more equal societies or will such rights continue to be considered ‘directive principles of social policy’ (Article 45 Irish Constitution)? Have we done enough to be ‘us at our best, caring about each other’, to quote the line RTÉ has been broadcasting over and over during the months of the crisis? Are we willing to address the social needs of every person in a situation of hardship without regard to institutionally constructed forms of ‘otherness’? 

These are political questions, but they are also intimately linked to a genuine implementation of the international legal duties that Ireland has decided to pursue and its political commitment to the goals of reducing inequalities, poverty and moving towards universal health coverage. 

Good news at last (and at least) for long-term undocumented people: the new Government openly committed to introduce pathways for their regularisation in the 18 months ahead. This measure means lifting the biggest barrier to the undocumented people’s enjoyment of human rights, including critical ESC rights, which is their irregular migration status. However, a genuinely human rights-based approach would still require the provision of essential social and health services to those people who will not meet the (personal and temporal) eligibility criteria of this scheme.

Is Ireland ready to embrace change by universalising key services that realise ESC rights, or will we return to business as usual, meaning violating international and European human rights law? ‘Posterity will judge!’ (cit. Alessandro Manzoni, Il Cinque Maggio, poem, 1821, translated from Italian – ‘ai posteri l’ardua sentenza’).