Blog post by Bethany Hastie, Assistant Professor, Peter A Allard School of Law, University of British Columbia, and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 15 of the Global Compact on Migration (GCM) aims to ensure that all migrants, regardless of migration status, have access to basic services, especially in relation to education and health care. It also provides recommendations to reduce legal and social barriers migrants face in accessing basic services, such as ensuring non-discrimination under the law and in service provision, and creating “firewalls” between service providers and immigration enforcement.
The IOM recently held its first regional review of state implementation of the GCM, focusing on Europe and North America. Of the states that submitted reports as part of this review, a number commented specifically on measures undertaken to implement Objective 15 of the GCM within their jurisdiction, including: Spain; Portugal; Ireland; Greece; Germany; Croatia; Belgium; Albania; Republic of Azerbaijan; Kazakhstan; Malta; Republic of Moldova; North Macedonia; Serbia; Turkey; and, the UK.
Progress towards implementation of Objective 15 of the GCM is evidenced by an array of measures undertaken by individual states. In particular, measures aimed at implementing Objective 15 can be understood as falling within three key categories, illustrated in Figure 1.
At the core, measures to ensure equal entitlement to basic services under law for migrants is necessary, as without entitlement under law, migrants will be unable to access such services in practice. These measures are reflected in the first recommendation (a) of Objective 15:
(a) Enact laws and take measures to ensure that service delivery does not amount to discrimination against migrants on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability or other grounds irrespective of cases where differential provision of services based on migration status might apply;
Once entitlement under law has been secured, measures to support practical access to basic services for migrants should be undertaken. Such measures aim to ensure that migrants have knowledge and information about the services, their entitlement to them, and the ability to access or use them in practice. These kinds of measures are reflected in, especially, recommendations (c), (e), and (f) of Objective 15, which recommend that states: establish holistic and easily accessible service points to facilitate access to basic services; incorporate the needs of migrants into national and local healthcare policies and plans, reduce communication barriers and provide culturally-sensitive service delivery; and, provide inclusive and equitable education to migrant children and youth, as well as vocation and language training.
Complementing measures to support practical access for migrants are measures that can protect the viability of access. These measures relate to ensuring sufficient safety and security for migrants, especially migrants in an irregular position, to seek out and access services without fear of legal repercussions, such as immigration detainment or deportation. These kinds of measures are reflected in recommendations (b) and (d) of Objective 15:
(b) Ensure that cooperation between service providers and immigration authorities does not exacerbate vulnerabilities of irregular migrants by compromising their safe access to basic services or by unlawfully infringing upon the human rights to privacy, liberty and security of person at places of basic service delivery;
(d) Establish or mandate independent institutions at the national or local level, such as national human rights institutions, to receive, investigate and monitor complaints about situations in which migrants’ access to basic services is systematically denied or hindered, facilitate access to redress, and work towards a change in practice.
Measures to Extend Entitlement under Law
Most states who reported on Objective 15 commented specifically on entitlement under law to, especially, health care and education services. Many states noted differential entitlement for migrants without recognized status, or for those in an irregular position, as well as for children and youth. Some states commented on entitlement to additional basic services under law, including with respect to housing, public financial benefits and legal aid.
In most reporting states, access to health care for migrants in an irregular position is limited to emergency or urgent health care services, while migrants with recognized status have access to a wider array of health care services, and in some states, full health care services. Some states, including Croatia, Serbia and Greece, reported extending entitlement to full health care services for migrant youth and children, regardless of status, and Germany and Spain reported access to universal health care.
Most states reported on extending entitlement to public education to migrant youth and children, including Croatia, Belgium, Greece, Malta and the UK. Greece and Malta also reported specifically on measures to ensure access to education for migrant youth and children regardless of their parent or guardian’s residence status.
Some states commented on public financial and other benefits available for migrants, typically those with recognized status. Germany and Ireland each commented on public financial benefits available to migrants within their jurisdiction. In Ireland, migrants may apply for Supplementary Welfare Allowance (SWA), which exists to “provide immediate and flexible assistance to those in need who do not qualify for payment under other State schemes” and which does not require “habitual residence” to access the benefits. In Germany, social insurance benefits, including in relation to health, long-term care, unemployment, pension and accident insurance, may be accessed where an individual engages in “more than marginal employment” and apply “regardless of nationality or residence status”. As such, these benefits are ostensibly available to any migrant who takes on “more than marginal employment”.
Few states commented on entitlement to housing in their reports on Objective 15. However, Portugal mentioned that “efforts are being made to build housing responses to address the vulnerabilities of the immigrant population, not only for emergencies but also to build autonomous housing”. In addition, a few states, including Croatia, Serbia and Malta, mentioned extending entitlement and access to accommodations for asylum seekers and other categories of migrants.
A small number of states commented on legal aid and related supports for migrants, both generally and in relation to obtaining or maintaining recognized status in their jurisdiction. For example, the UK noted specifically that access to legal aid – including for matters related to criminal proceedings and immigration – was available to migrants regardless of immigration status. Greece reported providing support for migrants to gain or maintain legal residency status, “which is critical when it comes to exercising their rights and lifiting exclusion from their access to social goods and services (education, labour market, public health services etc.).”
Overall, states who reported on Objective 15 have mostly ensured entitlement under law to emergency health care services for all migrants, and to primary education for migrant children and youth, meeting the minimum recommendations set out under Objective 15. Extending entitlement under law to universal health care, and to a broad array of educational programming, as some states have done, will better ensure that migrants’ human rights are met, as well as the spirit of commitments made under the GCM. Moreover, as some states illustrate, access to a wider array of basic services, including public financial benefits, employment assistance, and legal aid, is important to fully implementing and realizing Objective 15 which, while it highlights health care and education as priorities, leaves open the definition of “basic services”.
Measures to Support Practical Access to Basic Services
Measures to support practical access to basic services reflect an understanding of the on-the-ground needs of migrants to allow them to use the services to which they are entitled under law. Objective 15 set out several paragraphs recommending measures to support practical access to basic services for migrants. Some states commenting on measures undertaken to implement these supports, specifically in the areas of education, and information provision.
In addition to extending entitlement to education under law, several countries reported on measures to support access to education and training systems. For example, Portugal set out a number of measures to enable the inclusion of migrants in the education system, such as access to language learning, as well as supports to “enable the education system to quickly and effectively respond to integration needs, from documentation to vocational guidance, psychological support, and socio-linguistic training”. Turkey also set out a number of specialized programs implemented to extend access to and ensure integration of Syrian migrant children and youth in the education system.
Many of the reporting states also documented the creation of organizations and institutions to support migrants’ access to services, through information provision as well as assistance in navigating relevant processes. For example, Portugal has created both National and Local Centres to Support the Integration of Migrants, which provide a “one-stop-shop model” for assisting migrants with “social, legal, family reunification, qualification and skills, entrepreneurship, health and nationality assessment matters”. Similarly, Greece and Serbia each reported the creation of dedicated centres for migrants and asylum seekers. Malta reported the creation of Open Centres for migrants in an irregular position, which offer free accommodation, and a daily allowance for meals and transportation.
A few states also noted measures taken to ensure information dissemination to migrants as a support to enhance access to basic services in practice. For example, Germany reported developing informational material in multiple languages in order to reduce communication barriers in health care delivery. The Republic of Azerbaijan similarly reported the implementation of digital systems for the State Migration Service to promptly address migrants’ applications and inquiries, and available in a number of languages.
Objective 15 recommends that states develop training for culturally-sensitive service delivery, to better ensure practical access to and use of basic services by migrants. This is particularly important in the health care and education sectors. Germany reported specific measures in developing culturally-sensitive training for professionals in health care, with efforts underway to expand offerings, such as through language courses.
Overall, fewer states commented on measures undertaken to support practical access to basic services for migrants entitled to such services under law. The development of dedicated organizations and centres to support migrants’ access to such services, both through information and assistance, as well as service provision, is a promising sign and example that additional states may consider adopting. Moreover, measures that aim to provide information and supports in multiple languages, and in culturally sensitive ways, will further enhance practical access for and uptake by migrants. These are necessary supports to ensure that entitlements under law translate to effective access in practice.
Measures to Enhance Viability of Access to Basic Services
Measures to enhance the viability of access to basic services for migrants reflect the need to ensure safe and secure paths to accessing such services, specifically to ensure non-discrimination in service provision, and protect against immigration consequences associated with seeking out basic services, which act as a powerful deterrent for migrants in an irregular position, especially. As such, these measures are necessary complements to other measures supporting practical access, especially to ensure that vulnerable migrants, those without recognized status, can access basic services such as emergency health care, and for children, education.
Only one state documented any measures undertaken in respect of this category. Belgium reported the establishment of a dedicated institution, UNIA, to “receive, investigation and monitor complaints of discrimination, including those related to people in an irregular situation”.
Ensuring non-discrimination in service delivery is a key indicator to achieving the goals of Objective 15. The establishment of a dedicated complaints body, as done in Belgium, is one measure that can assist in ensuring non-discrimination in service delivery. Full extension of entitlement and access to basic services further supports non-discrimination in service delivery by eliminating citizenship status as a proxy for discrimination on the basis of race, ethnic origin and other grounds.
In addition, enhancing training related to culturally-sensitive service delivery, as in Germany, may work to reduce and mitigate against discrimination in individual experiences of service delivery and receipt. In addition, Objective 15 recommends ensuring that cooperation between service providers and immigration authorities does not exacerbate the vulnerability of migrants. Information-sharing or cooperation with immigration authorities is known to be a key obstacle for migrants’ access to basic services in practice, including with respect to health care, education, housing assistance, employment assistance, legal assistance, public benefits, and others. In other words, where service providers share information with immigration authorities, or are obligated to report migrants without recognized status, this compromises the viability of access to basic services for migrants, exacerbating their vulnerability. As such, “firewalls” – measures that safeguard against information-sharing with immigration authorities, such as through prohibiting the collection of records regarding clients’ immigration status, and/or prohibiting communication with immigration authorities related to clients’ immigration status – are a useful measure for states to consider in order to give full effect to Objective 15.
None of the available state reports commented on the development of “firewalls” or similar measures. Where migrants believe that their information may be shared with immigration authorities, leading to consequences such as deportation, this will act as a powerful deterrent against accessing basic services. Where citizenship status remains relevant to accessing basic services, as it appears to in many of the reporting states, measures that protect against information-sharing or reporting on migrants’ status may be of greater significance in enhancing access on-the-ground, given that individuals may be asked to provide identity or status documents in order to access services. Adoption of necessary laws, guidelines and practices to prevent information-sharing with immigration authorities is a critical measure to realize the goals of Objective 15 in practice.
 Although the language of firewalls was considered during the negotiation of the GCM, the final text does not adopt this language. See: E. Guild, T. Basaran, K. Allinson ‘From Zero to Hero? An analysis of the human rights protections within the Global Compact for Safe, Orderly and Regular Migration (GCM), International Migration 57(6), 2019
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This post was originally published on Refugee Law Initiative Blog.