The fourth report

of the Federal Republic of Germany

to the Committee on Economic, Social and Cultural Rights

This report is jointly presented by FIAN Germany, the German section of the international human rights organisation FoodFirst Information and Action Network with consultative status with ECOSOC, and the "Büro für medizinische Flüchtlingshilfe Berlin" (Medical Aid to Refugees).

The "Büro für medizinische Flüchtlingshilfe Berlin" has been working since 1996. It is considered an anti-racist, self-organised project and is not associated with any political party. The idea of an office for medical aid emerged in 1995 when various anti-racist and medical student groups met and agreed upon the need for interconnective, practical support for illegalised migrants in addition to political action. The "Büro für medizinische Flüchtlingshilfe Berlin" is struggling for an equal and humanitarian access to all social and health care services for anyone living in Germany, irrespective of their status of residence. All members of the group as well as the co-operating physicians, midwifes, therapists and interpreters work voluntarily and free of charge. Costs for radiographies, laboratory diagnosis, medicaments, glasses, etc. are funded by donations.

The information presented in this report is based on the experience of the "Büro für medizinische Flüchtlingshilfe Berlin" and other German NGOs and church organisations dealing with the human rights of undocumented migrants, especially with the right to health. With this report, the organisations seek to give a voice to these migrants who, because of their legal status, are unable to demand their rights in public. It is one major objective of the organisations to create an environment free from fear for these migrants, so that they can defend their rights vis-à-vis state institutions.

The German report to the Committee does not discuss the rights of undocumented migrants in Germany, although these migrants present an especially vulnerable group in society. Undocumented migrants are often denied the rights they are entitled to under international treaties and conventions, and (legal) protection is lacking. Access to state services is very restricted and the legal possibilities for NGOs and church organisations to give support to these people by providing them with food, shelter and medical support are not sufficient.

There are an estimated 500.000 to one million undocumented migrants in Germany. Many of these migrants are asylum seekers whose request for asylum has been rejected and who have stayed on in Germany, but probably in even more cases an undocumented migrant may be a migrant worker without a valid residence permit, or a person who simply has overstayed the period of validity of this authorisation to stay. This shows the importance of changing policies which are driving migrants into illegality, especially refugees. At the same time, this will not eliminate the existence of undocumented migrants, as the German economy also has an interest in the availability of cheap labour which is provided by illegal migration.

Measures at regulating migration are currently undermining the human rights of migrants living in Germany, whether documented or undocumented. The denial of the rights of migrants is used as a method of deterrence aimed at potential immigrants.

The German constitution as well as international human rights treaties, to which Germany is a state party, guarantee the human rights of all human beings regardless of their legal status. De facto, undocumented migrants are generally not in a position to claim their rights in fear of deportation.

This situation leads to problems regarding the human rights of these migrants in the following areas:

The humanitarian aspects of undocumented migration are currently being dealt with exclusively in the private, charitable sector of society. One of the reasons is that legal provisions are deterring undocumented migrants from using existing social services and law enforcement procedures. This situation is not acceptable, as the state is delegating its responsibility to the private sphere, denying its responsibility to respect, protect and fulfil the rights of all persons residing in Germany. At the same time, legal provisions criminalise the activities of NGOs, church organisations and individuals who on a regular basis support undocumented migrants on humanitarian grounds.

Acknowledging the above mentioned problems regarding for example the right to work or the right to education, the report will in the following concentrate on the right to health of undocumented migrants.

Article 12.1. of the Covenant states that

Paragraph 34 of the General Comment No. 12 on the Right to Health explicitly states that undocumented migrants must have equal access to health services:

Paragraph 50 of the General Comment defines the denial of access to health facilities as a result of de jure or de facto discrimination as a violation of the state obligation to respect the right to health:

Following these provisions, the de facto denial of access to health services for undocumented migrants in Germany constitutes a violation of the right to respect the right to health as laid down in the Covenant.

The following chapter will serve to illustrate the de facto denial of access to health services for undocumented migrants.

So far, little epidemiological data concerning the health situation of undocumented migrants living in Germany has been collected. According to the experience of advisory boards and the network of "Büro für medizinische Flüchtlingshilfe", the spectrum of diseases affecting this group is similar to that of other Western European populations. Tropical diseases or infectious viruses and other exotic illnesses are the exception.

According to the "healthy migrant effect", it is alleged that the younger and healthier persons are the more likely to migrate. In view of this effect, undocumented migrants are usually healthier upon entering the country than their comparable German counterpart. Yet the factors of both unfavourable living conditions in illegality and of not having access to the health care system amount to a negative influence on the overall health of migrants. This disadvantage is not only compensating for the "healthy migrant effect", but accumulates to a comparably worse health status and thus higher social inequality and reduced life expectancy in future.

In the event of an illness most undocumented migrants initially try to solve the problem on their own by self-medication or by referring to other non-professionals within their ethnic community. It seems that some of these communities have access to health professionals of their own origin. If patients cannot organise treatment within their community or if the treatment fails to cure, only then do they seek professional assistance thus delaying treatment at a considerable risk to their own health.

Stepping out of anonymity and into the public health care system is accompanied by the danger of looming deportation. A small number of undocumented migrants has supporting friends or is aware of the existence of networks like the "Büro für medizinische Flüchtlingshilfe Berlin". Therefore just a minority has easy and probably safe, but not sufficient access to professional medical treatment.

Additionally, there is no intercultural approach within the German health care system. The experience of the first migrant workers in the 1960’s has highlighted a variety of cultural and linguistic deficits in communication and understanding. On the one hand, migrants encounter major difficulties giving an accurate report on health complaints in German. Physicians will call for professional medical interpreters only in exceptional situations, usually depending on the patients family members or non-trained members of staff instead. Written information is usually available only in German. On the other hand, people adhere to different subjective or culturally based concepts of health.

The public health system in Germany is not a national affair, although the State is covering certain subjects where there is an interests in public health (infectious diseases, hygiene, etc.) through public health offices (Gesundheitsämter). The new Law for Contagious Diseases (Infektionsschutzgesetz) regulates that some infections such as Tuberculosis are diagnosed and treated anonymously and free of charge at public health offices. Vaccinations for children are offered by very few cooperating public health services in Berlin (Öffentlicher Gesundheitsdienst) without verification of residence status. Usually children of illegalized families are not vaccinated because of their parents fear to enter public health institutions, as a possibility of being denounced to migration officials.

Sexually transmitted diseases such as Syphilis, Gonorrhoea etc. are diagnosed anonymously and free of charge, some are also treated by the STD departments of the public health Offices. HIV and AIDS diagnosis is also anonymous and free of charge. Treatment, however, is not being paid for unless migrants qualify for at least the minimal and temporary status of residence, the "Duldung" (exceptional leave to remain).

About 90% of the German population participate in one of various "Krankenkassen" in an obligatory health insurance system, others have due to their professional self-employment or their high-income access to private health insurance. In either case a residence permit is a precondition for access to any health insurance scheme. The obligatory health insurance is linked to employment or to the family where at least one person is legally employed, studying or short term unemployed. In the case of unemployed, homeless persons or asylum seekers and refugees health insurance cover is extended at the cost of the Social Welfare Centre. Illegalized migrants have no access to health insurances.

In case of an emergency, all hospitals, emergency units and general practitioners are obliged by law to provide medical treatment. This law of obligation does not differentiate between patients with residence permit or health insurance and those without and is frequently cited by politicians and councils alike as proof of the adequacy of medical care available to undocumented migrants.

However, the reality is different. If a person does not hold an insurance card, hospitals usually try to find a substitute person or institution that can be held responsible for medical costs, most of the time even before treatment has commenced. Hospital staff are instructed to insist on signed documentation by patients or accompanying persons, agreeing to cost coverage. Often this is side-stepped by patients accidently declaring themselves as private patients, which in turn increases the cost of treatment by a factor of 2,3. Especially when the emergency treatment is followed-up by an operation or long-term hospitalisation, bills can easily rise to thousands of German Marks.

There have been reports of hospitals retaining personal documents such as passports of patients in order to enforce payment. Some hospitals do not hesitate to call the police at the point of submission already in order to clarify uncertain status of residence and insurance before treatment commences. As a consequence, patients are threatened with deportation after treatment has been completed, as is illustrated by the following example:

In other cases hospitals may arrange the "deportation" of patients at their own cost, i.e. in an ambulance to countries such as Poland or Ukraine, as transportation is less expensive than treatment in a German hospital.

Other physicians and hospitals have admitted a variation in their standard of treatment in cases were insurance status could not be clarified in advance, for example by treating a fracture with a plaster dressing rather than fixing the fractured bone surgically.

Fearing deportation, hospitalised undocumented migrants tend to discharge themselves from hospital before treatment has been completed.

In a study of the "Berliner Fluechtlingsrat", hospitals were asked about unpaid bills from undocumented migrants. The result indicated that the outstanding debts were negligibly small.

Hospitals have the possibility to ask the Social Welfare Centre to refund the expenses for non-insured persons regardless of residential status. Complicated administration procedures and the reluctance of the Social welfare centres to cover the costs make this inquiry very time-consuming and of uncertain outcome. Furthermore, not every hospital administration seems to know about this possibility. When Social Welfare Centre are asked to cover expenses for treatment, they usually refund only the cost from the day of notification and not for the entirety of the patients stay. If a hospital notifies the Social Welfare Centre in case of an undocumented migrant, the institution is held by law (§ 76 AuslG) to inform the office for foreign affairs. The office for foreign affairs will inform the police, thus triggering the likely event of deportation.

Planned hospital treatment like operations, treatment of chronic diseases, etc. is not available to undocumented migrants.

Out- patient care is usually performed in private offices by GPs, specialists and dentists. Upon their arrival patients have to present their medical insurance card or social security agreement from the Social Welfare Centre in order to receive medical treatment. Another possibility is to pay the treatment on a private basis, which amounts to the 2.3 fold payment. For illegalized migrants usually none of the above is possible. They might be treated in a few exceptions on goodwill. Even physicians willing to provide medical treatment free of charge, encounter problems in organizing and financing more complex treatments especially when laboratory diagnosis, x-ray or further consultation of specialists is needed. Illegalized migrants rather avoid to see various doctors for safety reasons.

Except for tuberculosis treatment and some STDs, no other drugs are provided by the state for illegalised out- patients. Some low threshold medical treatment centres for homeless run by churches or non- governmental organisations might be able to distribute essential drugs.

Pregnant migrant-women are living in particularly complicated circumstances. Because of the severe social and psychological burden inflicted by a life in illegality, pregnancies by illegalised migrants are considered as high risk pregnancies by gynaecologists. The risk of an involuntary abortion or premature birth is increased dramatically among this group. Pregnant women are therefore in need of intensive pre- and postnatal care, as well as medical support during delivery.

During the period of maternity, which has a juridical duration of 6 weeks before until 8 weeks after delivery, undocumented pregnant women have the possibility to legalise their status of residence. They need to register and apply for a residence status at the migration office. The most basic form of a residence permit "Duldung" (exceptional leave to remain) is granted on the grounds of their inability to travel due to medical reasons. The "Duldung" authorises access to medical treatment like for example preventive care and care after delivery in a hospital. Even in this case women have to apply and fight for every medical or preventive care in advance at the social security office. The new-born child will receive a birth certificate if the mother holds a valid residence permit. After the period of legally protected maternity, woman and child are stripped off their residence status and, since their name and address of residency is known by the authorities, deportation is very likely.

If a pregnant woman decides not to apply for a legal status of residence, delivering her child at home instead or as a private, self-paying patient in a hospital, the child too is born into illegality as it is impossible to obtain a birth certificate due to the unregistered status of its mother. Without a birth certificate, the mother cannot prove parenthood and the child may subsequently be taken away from her (e.g. in case of deportation), which has already happened. A birth certificate is only handed out to parents with a valid passport, residence permit and current address. If a birth certificate is not collected at the registry office within 4 weeks, data concerning the mother is passed on to office of foreign affairs (§76 Abs. 2AuslG). Hospitals automatically transmit data of the mother and the new-born child to the register office regardless of residence status.

If a pregnant woman decides not to have her child, she requires access to a medically accurate and safe abortion. According to German law (§218 StGB) abortion under "social indication" is lawful until the 12th week of pregnancy. A medical examination and a consultation informing the mother about her legal rights to social security and other forms of child support is obligatory and must be given at least three days in advance of the date of abortion. Meeting these requirements, besides finding a gynecologist or clinic poses extraordinary organisational difficulties and psychological stress for undocumented women. In general, the German state covers all expenses for an abortion, if the women’s income is below a fixed level, regardless of nationality or status of residence. Yet in order to access the benefit system or to ask a state institution for help and advice will again mean that the migration office will be notified.

There are no treatment possibilities for illegalised migrants suffering from mental illness, except in the case of compulsory treatment (a person endangering himself or others).

Refugees suffering from the physical and psychological consequences of war and torture are to be considered as a special group. Post-traumatic stress disorder (PTSD) is internationally recognised as a reason of acceptance for political asylum. Nevertheless, in Germany PTSD may not be accepted as a qualifying criterion for the granting of asylum, depending on political assessment and foreign policy. If asylum is not granted on the basis of PTSD, migrants are likely to move into illegality where they are unlikely to receive adequate treatment. Under these conditions an adequate therapeutic setting is not likely to be given, furthermore one can expect re-traumatising effects, which can also happen due to inhumane living conditions and fear of police and the threat of deportation back to the place of initial traumatisation. The few existing NGO- therapy centres have only limited human and financial resources. The waiting list often amounts to several months.

In November 2000, representatives of NGOs and church organisations have sent a petition to the German parliament, in which they are calling for a modification in the legal provisions of the Ausländergesetz (alien law), in order to improve the conditions for humanitarian assistance to undocumented migrants in Germany. The petition is currently being processed by parliament.

The demands formulated in the petition are based on a legal opinion, which is among other issues dealing with regulations relevant to the right to health. The legal opinion presents the following conclusions:

In order to guarantee the right to health of undocumented migrants, it is necessary to modify the respective legal provisions which are creating fear of prosecution on the side of the migrants as well as those offering medical assistance. Although undocumented migrants can theoretically obtain medical care and financial support by the Social Welfare Centre since they are legally considered as "persons obligated to leave the country" whose rights are mentioned in § 53 Ausländergesetz and therefore they are subject to the "Asylbewerberleistungsgesetz". Claiming the Social Welfare Centre to pay for medical care fail because of § 76 (2) Ausländergesetz. Paragraph 76 of the alien law stipulates that members of official boards must pass on any data regarding individuals without permit of residence immediately to the relevant sections of the Ministry of the Interior.

Medical doctors are bound by the professional ethic based on the Hippocratic oath to give medical treatment to people in need. In contrary there is § 92a, Abs.1, Satz 2 AuslG "Infiltration of foreigners" .

In order to ensure that medical doctors can act according to the Hippocratic oath without being prosecuted, it is necessary to exempt the activities of individuals and organisations providing medical support to undocumented migrants.

The report presented by the German government to the Committee on Economic, Social and Cultural rights does not report on the rights of undocumented migrants, although these migrants present an especially vulnerable group in society.

The German government fails to respect the right to health of undocumented migrants to which the government is duty-bound under international law. Our report shows that there is a de facto denial of access to health services for undocumented migrants.

Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. We urge the German government to realise the right to health for everyone without any discrimination. As a first step, we ask the German government to eliminate §76 of the alien law in order to enable undocumented migrants to make use of ... health services free of fear of deportation. We also ask the government to modify §92a to enable medical doctors and supporting organisations to help migrants without being prosecuted.

FIAN and the Büro für medizinische Flüchtlingshilfe Berlin urge the Committee on Economic, Social and Cultural Rights to express its concern about such practices and policies and to provide the Federal Republic of Germany with recommendations how to address this situation.