The exclusion of foreigners in an irregular situation from the Right to Health Care in Spain
| Author | Juan Antonio Maldonado Molina |
| Profession | Professor Of Labour Law And Social Security University Of Granada, Spain |
| Pages | 30-53 |
The Exclusion of Foreigners in an Irregular Situation from the Right to Health Care in Spain
Introduction
T
he Spanish Constitution of 1978 recognises, under Article 43, the right
to health care. However, this recognition is not considered a “funda-
mental right” as its appearance within the constitutional text is deemed
nothing more than an inspiring principle. Indeed, it is formally accepted in
Chapter III of Title I of the Constitution, among the “Principles governing
social and economic policy”, limiting its eciency such that “it (they) is (are)
only exercisable from the moment and in the terms in which it is established
under an ordinary law” (Borrajo Dacruz, 1991, p. 1486). erefore, they
do not go beyond being programmatic precepts, “whose fullment can only
be demanded, in principle, by the narrow channel of constitutional control,
and not by way of jurisdictional protection of fundamental rights” (Martín
Valverde, 1988, p. 66)1.
However, it should be claried that “the programmatic nature does not im-
ply that the principle is not legally binding” (Monereo Pérez, 1996, pp. 90-93),
but rather that this precept —as well as the others that make up this block—
must be interpreted in connection to the clause contained in Article 10.2 of
the Constitution, according to which, “the norms, related to fundamental
rights and freedoms that the Constitution recognises, will be interpreted in
accordance with the Universal Declaration of Human Rights and international
treaties and agreements as ratied by Spain”2. In this regard, under the con-
stitutional law of the European Union, access to social security is considered
a fundamental right.
In any case, the Spanish Constitution of 1978 recognises the right to health
care, but subsequently adds a mandate to the legislator that the public author-
ities are authorised to organise and protect public health through the use of
preventive measures and provision of necessary services and welfare. erefore,
it is the law that establishes the rights and duties of everyone in this regard and
we must analyse the legal development of this right in the Spanish legal system.
1 n general, the incorporation of social rights to the Constitutions has not been accompa-
nied by the elaboration of adequate social or positive guarantees, that is, by techniques of
defense and jurisdictional protection comparable to those provided by the liberal guaran-
tees for guardianship of the freedom of rights, as is pointed out by Ferrajoli (1997, p. 863).
2 For an analysis of the implications of Article 10.2 CE, consult (Vida Soria, 1996, pp. 117-118).
Juan Antonio Maldonado Molina
1 e Right to Health Care for Foreigners in Spain
It is commonplace in studies related to health care in Spain to begin by under-
lining its universal character, an issue derived from an explicit statement with
regards to the Law, that since 1986, Article 1.2 of the General Health Law
states “all Spaniards and foreign citizens who have established their residence
in the national territory are holders of the right to health protection and health
care”. erefore, it would seem that one need solely reside (legally) in Spain for
this to apply. Regarding Spaniards, Article 3.2 of the said Law is even more cat-
egorical: “Public health care will be extended to the entire Spanish population”.
Regarding foreigners, although the Law of 1986 is conditioned towards res-
idency, Law 4/2000 of January 11th,on the rights and freedoms of foreigners
in Spain and their social integration —the so-called “Immigration Law”—,
extended the right to foreigners in an irregular situation, albeit not in a ho-
mogeneous and undierentiated way, given that its extension to the afore-
mentioned very much depends on subjective —administrative situation of the
subject, age, stage of pregnancy— or objective —that the required health care
is urgent— circumstance.3
Of the cases expressly admitted, the most relevant was that of any foreigner
who was registered in the municipal registry —which is dierent from having
legal residence—. e other cases were already “included in the current sys-
tem of sources of our legal system” (Molina Navarrete, 2001, pp. 233-234).
But there were others whose recognition was imposed —and continues to be
recognised— by international standards in the matter. For example:
•
Foreigners under the age of 18 in Spain receive privileged treatment, as
the Law recognises the right for this category of foreigner to merely stay in
3 With the mmigration Law, in its initial drafting of 2000, there was evident progress with
respect to previous regulations governing foreigners, by extending it to four categories
of foreigner whose stay in Spain was not legal. They were: 1) those who are in Spain and
enrolled in the census of the municipality of their customary legal residence (these would
have the right to health care under the same conditions as Spaniards); 2) foreigners who
are in Spain have the right to urgent public health care in the face of an accident or should
a serious illnesses be contracted, whatever their cause, and the continuity of such care
shall be administered up until the point of medical discharge; 3) foreigners under the age
of eighteen who are in Spain have the right to health care under the same conditions as
Spaniards; and 4) pregnant foreigners who are in Spain will have the right to health care
during pregnancy, childbirth and postpartum.
To continue reading
Request your trial