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. This is also the case with our plaintiff from Kosovo who suffers from a heart condition.
With an urgent application, we want to achieve in the short term that the administrative court prohibits the social welfare office from transmitting the plaintiff's data to the foreigners authority. Two Hessian courts had already rejected the plaintiff's emergency application because he had filed a lawsuit without providing his name and address. This is because courts are also subject to the challenged duty to report and would have to pass on the plaintiff's data.
The constitutional complaint aims to have the reporting requirement declared unconstitutional and to prevent the plaintiff's data from being passed on to the immigration authority. In addition, the GFF intends to file an emergency motion to ensure that the plaintiff can receive medical care in a timely manner.
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).
LACK OF HEALTH CARE FOR UNDOCUMENTED MIGRANTS VIOLATES EU LAW
In a formal complaint to the European Commission, the GFF criticizes the obligation to transmit data to the immigration authority in Section 87 of the Residence Act. The duty to report violates European data protection law. The General Data Protection Regulation only permits the misappropriation of data in exceptional cases; in particular, the data transfer changing the purpose must be necessary and proportionate. This is not the case here, because due to its deterrent effect, the transfer obligation is already not suitable for detecting irregular stays. At the same time, the de facto exclusion from health care violates the right to medical care guaranteed in Article 35 of the EU Charter of Fundamental Rights. The complaint is supported by 36 organizations.
Read our formal complaint to the European Commission here (in German).
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).