A Controversial Judgment of the Spanish Constitutional Court: Excluding Irregular Migrants from Free Healthcare

by | Mar 14, 2017

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About Tania Abbiate

Tania Abbiate holds a PhD in Comparative Public Law from the University of Siena (Italy) and is currently senior researcher at the Max Planck Institute for Social Law (Germany). Her research interests include socio-economic rights, constitutional transitions and African law.


Tania Abbiate, “A Controversial Judgment of the Spanish Constitutional Court: Excluding Irregular Migrants from Free Healthcare, 14 March 2017) <https://ohrh.law.ox.ac.uk/a-controversial-judgment-of-the-spanish-constitutional-court-excluding-irregular-migrants-from-free-healthcare> [Date of Access]

Last July, the Spanish Constitutional Court issued a contentious judgment in one of a number of pending constitutional challenges to a modification to the Spanish national health-care system. The changes to the healthcare system mainly concern the move from a universal healthcare system to an insurance-based one, but only for certain people. The number of people in Spain who benefit from free healthcare is thus reduced. The modified system guarantees free assistance and treatment to European and Swiss citizens, provided they pay their social security contributions, and foreigners who hold residence permits in Spain, provided that their income is not above 100,000 euros per year. However, undocumented migrants, who had previously been guaranteed the same access to health care as Spanish citizens, were among those excluded. For those who do not benefit from free healthcare, insurance-based healthcare is provided, under the following requirements: the person must have lived in Spain for at least one year, and must pay a monthly quota (which varies between regions). The decision has been strongly criticised by human rights organizations, as well as some scholars, who have expressed their worries about the situation of irregular migrants.

The change was enacted by the Royal Decree-law n. 16/2012 (hereinafter “Decree-Law”), one of a number of changes to public sector services adopted in Europe in response to the 2008 economic crisis. The judicial approach of European courts called to scrutinize these measures has varied, and the Spanish Constitutional Court has adopted a fairly cautious approach towards such political decisions. Maintaining this stance, the Court rejected all claims that the Decree-Law was unconstitutional.

The conditions for the adoption of a Decree-Law are set out in Article 86.1 of the Constitution: firstly, urgent need; and secondly, the existence of a connection between the measures adopted and the urgent need. The Court considered that both requirements were met; that the measures were sufficiently explicit and well-reasoned; and that they were logically connected to the situation economic crisis and challenges of “healthcare tourism” to which they responded.

There was also no violation of the right to health, which in Spain is a directive principle of state policy and not a fundamental right. The Court dismissed the argument that an enforceable right to healthcare can be derived from the right to physical integrity in Article 15. However, it stressed the fact that this status does not mean that the right to health is an empty right, but rather it is a “value of undoubtable constitutional relevance”, which should inspire the legislature.

Finally, with regard to an alleged conflict of competences, the Court ruled that the impugned norms do not trespass on the competences of the autonomous communities and respect the constitutional limits set by Article 86.1.

The Court did however find that the introduction of a government-determined income limit, above which free healthcare is not available for Spanish and European citizens as well as foreigners holding a residence permit, violated the constitutional rule, set out in Article 43.2, that the rights and duties of all in respect of public health and hygiene should be set out by law. The Court held that governmental regulation could in principle govern income limits on the availability of free healthcare, but that in this case, the Decree-law gave the Government excessive power on the matter, and that the criteria for determining the maximum income above which free healthcare is not granted were not clearly specified.

The case was decided with a split of 8:3. There were two dissenting opinions, which argued that the Government had failed to prove that healthcare reform would actually save public money, and pointed out that the requirement of registration at municipal level for foreigners who apply for access to healthcare was already in force, although those who did not register, such as irregular migrants, were not prevented in practice from accessing healthcare. Concerning the exclusion of irregular migrants, the dissenting opinions considered that the introduction of limitations to the free healthcare system (with some exceptions) was a retrograde step in the realization of the right to healthcare, and that for this reason such a measure would have needed a much stronger justification than that contained in the actual decree.

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