Without fear to the doctor
Together with Doctors of the World and 45 other organizations, the GFF has submitted a complaint to the EU Commission. In doing so, we in the alliance are once again criticizing the duty to report, which has effectively excluded undocumented migrants from all medical care for over 30 years. The right to basic medical care is an expression of human dignity and is due to all people - regardless of their residence status. We also support complaints from people who need medical care due to an urgent illness.
Since 2021, we have been campaigning with the GleichBeHandeln campaign to abolish the duty to report - so that people without papers can see a doctor without fear. Most recently, we joined forces with a plaintiff from Kosovo and the organization Doctors of the World to sue the city of Frankfurt for access to healthcare for undocumented migrants. The plaintiff, who has a heart condition, has been living and working in Germany for over 30 years. Although he urgently needed a heart operation, the administrative courts rejected the urgent applications. Our appeal to the Federal Constitutional Court was not accepted for decision - without explanation. The proceedings in the main case before the Frankfurt Administrative Court have been settled. Since 2023, our plaintiff has had secure residence status and health insurance again.
Hundreds of thousands of people without regular residence status live in Germany. They go to work, send their children to school - and have no access to healthcare. The reason lies in Section 87 of the Residence Act: government agencies must immediately report people without papers to the immigration authority if they come into contact with them. The immigration authority then initiates deportation. Our study "Without Fear to the Doctor" and our ongoing lawsuit show: The duty to report leads to life-threatening illnesses going untreated. Hundreds of thousands of people living in Germany without papers continue to be denied healthcare.
LACK OF HEALTHCARE FOR UNDOCUMENTED MIGRANTS VIOLATES EU LAW
In a formal complaint to the European Commission in April 2024, the GFF once again criticized the duty to report to the immigration authorities in Section 87 of the Residence Act. We had already submitted a complaint in 2021. In the coalition agreement and vis-à-vis the Commission, the Federal Government promised to quickly introduce a bill so that ill people would no longer be prevented from seeking treatment in future. However, current developments in migration policy give rise to fears that this promise will no longer be kept during this legislative period. Germany is therefore continuing to violate EU law.
The obligation to transfer data violates European data protection law. The General Data Protection Regulation only permits the use of data for different purposes in exceptional cases; in particular, the transfer of data for a different purpose must be necessary and proportionate. This is not the case here, as the obligation to transfer data is not suitable for detecting irregular stays due to its deterrent effect. At the same time, the de facto exclusion from healthcare violates the right to medical care guaranteed in Art. 35 of the EU Charter of Fundamental Rights. The complaint is supported by 45 organizations.
HEALTH CARE IS A HUMAN RIGHT
The duty to report is not only unconstitutional and contrary to European law, but also violates international human rights obligations. The German government is obligated to ensure access to adequate health care for all people in Germany - regardless of income, origin or residence status. Germany has recognized the human right to non-discriminatory access to health care, among other things, by signing the International Covenant on Economic, Social and Cultural Rights.
Both the UN Committee on Economic, Social and Cultural Rights and the UN Social Committee regard the obligation to register under residence law as a violation of the right to health and urgently recommend reform.
THE EQUAL TREATMENT CAMPAIGN ALLIANCE
Hundreds of thousands of people do not go to doctors for fear of losing their livelihood - people infected with Covid-19, chronically ill people who urgently need medication, children or pregnant women who need preventive examinations and medical care. That's why, in the run-up to the lawsuit, we joined Doctors of the World and more than 80 other civil society organizations in the GleichBeHandeln campaign to advocate for medical care for all people in Germany and demand that the health sector be exempt from mandatory reporting.
The campaign has already achieved a first major success. The German government has agreed in the coalition agreement that the reporting requirements of undocumented people should be revised so that "ill people are not discouraged from seeking treatment" (SPD/Grüne/FDP 2021: 139).
THE DUTY TO REPORT IS UNCONSTITUTIONAL
The duty to report violates the basic right to a minimum standard of living in terms of health, because it de facto excludes people without a regulated residence status from health care. The government must ensure that access to health care works in practice.
The legislature must design living wage benefits in such a way that those affected can also accept them. The basic right to a dignified minimum standard of living applies unconditionally and must not be relativized for reasons of migration policy. The restriction of access to health care by Section 87 of the Residence Act can therefore not be justified by the fact that the legislature wants to enforce the obligation to leave the country.
Furthermore, the transfer of personal data of ill persons violates the right to informational self-determination. The transfer of data to the immigration authorities is a particularly serious encroachment on this right because it has serious consequences for those affected. This interference is disproportionate because it defeats its purpose. Instead of uncovering irregular stays, the notification requirement discourages people from seeking health care. In this way, the reporting requirement makes it impossible for the social welfare authority to fulfill its task and ensure the constitutionally required minimum social care.
Read the GFF study "Without fear to the doctor - The right to health of people without regular residence status in Germany. A fundamental and human rights assessment of the duty to report in the Residence Act" here (in German).
ACTION FOR HEALTH CARE FOR THE SERIOUSLY ILL
The claimant, who has a heart condition, has been living and working in Germany for over 30 years. From 2017 to 2023, he had no regular residence status. Without a residence permit, he was effectively excluded from healthcare in Germany. He had to apply for a treatment certificate from the social welfare office to receive treatment for his heart disease. The social welfare office is obliged to report him to the immigration authorities immediately. This would have threatened the claimant with deportation.
With an urgent application, we wanted to ensure at short notice that the administrative court prohibited the social welfare office from transferring the plaintiff's data to the foreigners authority so that the plaintiff could receive medical treatment promptly. In order to prevent the lawsuit itself from leading to his data being transferred to the immigration authorities, the plaintiff had filed a lawsuit under a pseudonym and without providing his home address. This is because courts are also subject to the contested transmission obligation and are therefore obliged to forward the plaintiff's data to the immigration authorities.
However, by using the file number of the Clearingstelle Frankfurt, which is located in the Frankfurt Health Department and advised the plaintiff in the humanitarian consultation, clear identifiability is ensured. The court can have the identity confirmed there, but may not forward this data because it is subject to medical confidentiality.
The Hessian administrative courts have nevertheless rejected the plaintiff's urgent application as inadmissible. The Federal Constitutional Court did not accept the constitutional complaint against the decisions in the summary proceedings - without giving reasons. The failed summary proceedings show that people without a residence permit are not only denied the right to health, but also access to effective legal protection.
Since 2023, our plaintiff has had secure residence status and health insurance again. He is receiving the necessary cardiology treatment.
