UN finds rights violations in irregular migrant being denied essential health services

Toussaint v. Canada, CCPR/C/123/D/2348/2014, 2018

Nell Toussaint challenged Canada’s denial of health care coverage to undocumented immigrants under the under the federal government’s program of health care to immigrants, called the Interim Federal Health Benefit Program. After exhausting domestic remedies, Toussaint brought her claims to the United Nations Human Rights Committee (Committee).

Toussaint claimed Canada violated her rights to non-discrimination (articles 2.1, article 26); effective remedy (article 2.3.a); life (article 6) ; not to be subjected to torture and cruel, degrading and inhuman treatment (article 7); and liberty and security of person (article 9.1) under the International Covenant on Civil and Political Rights (Covenant) by denying, on the basis of her irregular immigration status, access to health care necessary for the protection of her life and health.

Canada argued that Toussaint’s claim, challenging the law to ensure health care coverage regardless of immigration status, was rendered moot because she had since gained permanent residency status and thereby obtained full health coverage. Canada further argued that her claim constituted an inadmissible actio popularis, challenging the scheme as a whole as it applies to others, rather than an individual violation.

The UN Committee agreed with Toussaint and the supporting organizations, finding that the petition was not an actio popularis and was not moot. The Committee noted that Toussaint had been personally and directly affected by the policy, and that the health care she subsequently received did not remedy the harm she had already suffered. The State further argued that their burden had been satisfied by the existence of emergency health care services available to everyone, as well as community health centers and other pro bono services. The Committee decided that emergency health care alone is not sufficient to ensure protection of the right to life, that immigration status is a prohibited ground of discrimination under the ICCPR and that denying irregular migrants, access to health care necessary for life, is not based on reasonable and objective criteria.

The Committee held that Toussaint had not provided sufficient evidence to establish that her rights had been violated under articles 7 and 9(1) of the Covenant. The Committee held that Toussaint’s rights to life and to non-discrimination had, however, been violated under articles 6 and 26 of the Covenant, noting that the right to life has been too often narrowly interpreted and cannot be understood in a restrictive manner. The Committee rejected the State party’s assertion that the author was in effect claiming a right to health care that is not included in the ICCPR.  It found that the State party had a positive obligation to protect Ms. Toussaint’s right to life which, in her particular circumstances, required provision of essential health care. At minimum, the Committee held, States are required under article 6 to provide access to existing health care services that are reasonably available and accessible when a lack thereof would expose a person to a reasonably foreseeable risk that can result in death.

The UN Committee’s decision requires Canada to 1) adequately compensate Toussaint for the harm she suffered, and 2) take steps to prevent similar violations in the future, including reviewing its laws to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that could result in loss of life.

This decision is the first time a UN human rights treaty body has considered a situation in which a person with irregular migrant status was denied access to essential health care necessary for the protection of life. The Committee also affirmed states must take positive measures to protect the right to life. The decision emphasized the interconnectedness of all human rights, in particular the relation between health care and the right to life.  

In addition, the Committee’s consideration of the legal opinions from Amnesty International and from a coalition of organizations coordinated by ESCR-Net is a helpful precedent in emerging practice at UN treaty bodies through which Committees can be provided with necessary expertise and argument from a range of sources. It also demonstrates the power of collective work by civil society organizations.

Finally, this decision can also be of assistance in applying the Committee’s new General Comment 36 on the Right to Life, recently adopted in October 2018. For more details on the general comment, and member contributions in shaping its content, please click here).

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and Social Rights Advocacy Centre (SRAC).

Read more

Visit the caselaw database for more information on the case summary, the judgment and other related documents.