Canada: People with irregular status have the right to access essential health care

Amnesty International and ESCR-Net welcome a ground-breaking decision of the UN Human Rights Committee, which, in upholding a complaint against Canada for breaching the right to life and non-discrimination, ruled that protecting the right to life requires states to ensure that people who lack a regular immigration status – also known as irregular migrants – have access to essential health care services.
“This is the first time a human rights body has affirmed that irregular migrants’ rights to life and equality include access to essential health care,” said Alex Neve, Secretary General of Amnesty International Canada’s English Branch. “In recognizing our common humanity this case sends a strong signal that the right to life can never be compromised by one’s immigration status and that essential health care must be available to everyone who lives in a country – regardless of immigration status.”
Life-saving treatment wrongly denied  
The Applicant, Nell Toussaint, entered Canada as a visitor in 1999 but stayed on without documentation to live and work in Canada. She began the process to regularize her immigration status in 2005 but the process was delayed and in 2008 she developed serious health conditions requiring medical treatment. She had some access to emergency health care but was denied access to other essential health care available through Canada’s Interim Federal Health Program (IFHP) due to her irregular immigration status.  After unsuccessfully challenging this denial in federal court and being denied leave to appeal to the Supreme Court of Canada., Toussaint challenged this exclusion before the Human Rights Committee.
In deciding in Toussaint’s favour the Committee made the following key observations: 

The right to life includes the entitlements necessary for individuals to enjoy a life with dignity. This protection requires governments to adopt positive measures.

  In the context of this case, as a minimum, States have an obligation to provide all persons with access to existing health care services that are reasonably available and accessible, where a lack of this access would expose a person to a reasonably foreseeable risk that can result in loss of life.

In matters regarding the right to life, states cannot make a distinction between regular and irregular migrants.

Excluding Nell Toussaint from the IFHP because of her irregular immigration status could result in irreversible negative consequences for her health or even loss of life, was not based on any reasonable or objective criteria, and therefore amounted to discrimination.

Canada needs to immediately act to remedy harm suffered and prevent future violations
The Committee directed Canada to review its national legislation to ensure that irregular migrants have access to essential health care in the circumstances outlined above.
“This violation of the fundamental right to life, which occurred under a previous government, must be addressed urgently.  Having been found to be in breach of its obligations the current Canadian government should live up to its stated commitment to human rights, to the rights of migrants and to United Nations mechanisms through which States are held accountable.  It should take urgent steps to implement the recommendations of the Committee by bringing its laws and policies in line with international human rights standards to ensure that no one in Canada has to experience what Ms. Toussaint did,” said Geneviève Paul, Director General of Amnesty International Canada’s Francophone Branch.
Nell Toussaint is a national of Grenada who has lived in Canada since 1999. She began the process to regularize her immigration status in 2005 but encountered obstacles because of her inability to pay significant fees. While this process was pending, she developed serious life-threatening health conditions. She was diagnosed with pulmonary embolism, and also suffered from complications from other health conditions, including renal dysfunction and diabetes. She had some access to emergency health care, but required other essential curative and preventative care, for which she applied through Canada’s Interim Federal Health Program (IFHP). She was denied access to this program because of her irregular immigration status, and challenged this decision in Canadian courts.
While her challenge was pending, in April 2013, Nell Toussaint’s application for permanent residency in Canada was successful and she became eligible for health care coverage as a result. Having received no relief in Canadian courts, and wishing to ensure that the same thing did not happen to others in her situation, she submitted her case to the Human Rights Committee claiming a violation of her rights to life and non-discrimination, asking that Canada change its laws and policies to ensure that people have access to health care necessary for the protection of their right to life, even if they do not have a legal migration status.
Amnesty International and the International Network for Economic, Social and Cultural Rights (the ESCR-Net) provided legal opinions which were submitted by Ms Toussaint, setting out relevant international and comparative law and standards to assist the Committee including on the link between the right to life and other rights such as the right to health, based on the principles of interdependence and indivisibility of all rights.
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