Migrant Health Rights in Colombia: What’s at Stake Beyond Justiciable Rights and Humanitarian Programmes?

[Stefano Angeleri (X/Twitter: @StefAngeleri) is a EU’s Marie Skłodowska-Curie postdoctoral fellow at Queen’s University Belfast and visiting scientist at the FXB Center for Health and Human Rights at Harvard University]

Funding: This research was supported by funding from the European Union’s Horizon 2020 research and innovation programme under Marie Skłodowska-Curie grant agreement no. 101032116—HEAVEN.

During the last 8 years, 7.7 million people have fled Venezuela due to a protracted economic, political, and social crisis in the country which is not expected to cease any time soon. This figure –real people fleeing either persecution or human rights abuse or both– exceeds that of internationally displaced Syrians or Ukrainians.

Colombia –a place where international human rights law has a handhold but without a recent history of immigration– has responded with periodic regularization schemes and by engaging with humanitarian actors and non-state organizations to address rights- and needs-related concerns of this population (2.9 million people according to last year’s data).  

After conducting fieldwork in the country for an EU project, in this blog piece, I am reflecting on how a complex net of norms, actors and initiatives enable but also constrain the enjoyment of health rights for migrants. This also allows me to ponder the role of international human rights standards in context, navigating the spectrum between idealism and pragmatism, in highly sovereignty-sensitive areas such as migration and health. 

Migrant Regularizations and its Limits 

While states are sovereign in determining their migration policies (while respecting refugee law and human rights norms), leaving migrants in precarious and irregular status is the perfect recipe for facilitating their abuse, exploitation and destitution. Promoting regular migration and regularization schemes have for quite some times been put forward as pragmatic remedies to promote migrants’ social integration and human rights. 

In 2021, Colombia was internationally praised for its Temporary Protection Statute for Venezuelan Migrants (TPSV), a regularization scheme offering temporary residence permits (TPP) of a duration of 10 years. Successful applicants gain a document that should facilitate socio-economic integration and affiliation to state-funded health care on the basis of equality with Colombian nationals.

To sum up, migrant legal status = possibility of affiliation with the health system via an (state subsidized) insurer = protection of the right to health (in compliance with international standards). Without these conditions, uninsured people can only access emergency or urgent care.  

It’s not as simply as it seems to regularise and enjoy this right though: several conditions apply to be eligible for and maintaining a TPP (eg. cut-off dates and broad discretional powers of the migration agency) thus offering a liminal legality. Roughly 30% of the applications are still pending to date and this will delay access to necessary care. Further, 30% of the successful candidates have not registered yet with the health system, some of whom for lack of knowledge on the procedure, others prevented by health insurers who do not recognise this document as valid for affiliations. If we include in the figure migrants who are completely not eligible, more than 1 million Venezuelans in Colombia and other irregular migrants of different nationalities, cannot access meaningful levels of health care.

It’s thus imperative to see how these excluded populations can partially enjoy health rights, and to what extent this practice comply with international standards.

Constitutional Adjudication: A Selective Approach to International Law 

The right to health consists of freedoms and entitlements to available, accessible, acceptable, good-quality preventive and curative healthcare and other social determinants that realise the highest attainable standard of physical and mental health for individuals and communities.  

The right to health for irregular migrants, across many countries and including Colombia, is a right to urgent and emergency treatment. According to human rights orthodoxy, can this be considered a lawful, legitimate, and proportional right limitation?

It is not, according to authoritative soft-law sources of the UN Committee on ESCR, Committee of Migrant Workers, Committee of the Rights of the Child and the InterAmerican Commission of Human Rights, that interpreted international standards to ground an irregular migrants’ right to primary health care or a care equivalised with that of state nationals. 

Indeed, the protection gap between life-saving treatment (actually covered by the scope of the right to life) and all other available –though always perfectible– health services (a fully-fledged right to health without discrimination) is disproportionally huge. The avoidable suffering is substantial. Therefore, the Constitutional Court of Colombia (CCC) stretched the concept of “urgent care” to include: access to abortion, antenatal care, childbirth assistance, treatment for degenerative health conditions like cancer and HIV/AIDS, essential necessary care for children.

It is a laudable example of judicial advocacy, but in practice it leaves some unaddressed issues: 

1. It performs a selective implementation of international human rights: the scope of a non-discriminatory right to health exceeds that level of care, for non-nationals too. For instance, what about essential primary health care or necessary health services for people with disabilities, being the latter protected by strict and equitable international norms?  

It’s not all the state authorities’ fault, though: It may be difficult to navigate highly fragmented standards. 

2. Further, the case law of the CCC –which rarely issued general or structural order to the health authorities or governments in these “migrant health” cases– has not led to any significant law reform or adoption of policies or protocols that enable access to the “urgent” services that for the Court realise fundamental rights (but the recent regulation of abortion rights). Litigation through a writ of protection is in practice always required (though at times ineffective) to enjoy “urgent” care on an individual level, except for emergency care and childbirth assistance. Could this judicialization –also based on international standards– have effects on the promotion of democratic debates and actions for change or risks undermining the need of routes that allow collective claims and solutions? Unfortunately, it seems quite the latter with regards to migrant health rights: diaspora organizations are not very vocal in the country and the text of the 2023 health reform bill (with an emphasis on primary and preventive care) is silent on migrants’ health.

The Contribution of Humanitarian and Non-state Organizations to de facto Rights

One point emerging clearly from the previous section is that international migrants’ rights and health-related state obligations are only partly legally recognised, institutionalized and accountable for in Colombia’s legal system. Yet, since large mixed movements arrived in the country, humanitarian actors and non-state organizations have provided services that in practice contributed to ensuring their human rights (at least basic social rights).

According to article 2 of the ICESCR, to realise socioeconomic rights for all without discrimination, including the right to health, states should adopt a broad array of measures “individually and through international assistance and co-operation”. Resorting to development, humanitarian agencies and NGOs to realise these rights is compatible with international human rights law. For instance the cooperation agreement between Colombia and International Organization for Migration (the UN Migration Agency) implicitly recognises that irregular migrants’ health needs –aka the interests protected by the right to health– exceed those protected by the legal and institutional system. Through multisectoral platforms of actors and clusters, the Pan-American Health Organization (PAHO), IOM and partners coordinate actions that encompass primary health care, contraception, children health and social care, temporary housing, psychosocial support, food security among others.

These programmes can give migrants the impression that they de facto enjoy basic health rights (focus groups for HEAVEN). Nevertheless, their scope is restricted and can only partially tackle the unequal power relations that human rights-based approaches (HRBA) aim to address: 

• priority setting is not always based on bottom-up needs-assessment, but often donors can exercise influence on the actual projects and target people; 
• geographical reach and funding of these organizations are limited (programmes are mostly concentrated in urban and suburban areas and, in 2022, they were not able to meet the health needs of more than half of their target population); 
• non-state organizations and international actors’ capacity to assist the duty-holder (governments) to implement changes and durable rights-based solutions seems limited. Most stakeholders report a complete dependence of state health authorities on non-institutional funding and programmes. All of this means reduced accountability for the right to health of migrants. 

Yet, on the good practices side, I would like to mention a few developments connected to an emerging experimentalist approach to human rights, as the result of interactions between actors, institutions and norms for migrant rights. 

In Colombia, university legal clinics and pro-bono legal initiatives, have widely contributed over the last few years, to defend the interests of migrants (and other vulnerable people). For instance: 

• an established NGO like Dejusticia has filed many influential submissions to the CCC in migrant health cases; 
• current humanitarian response includes the offer of information and legal assistance;
• the national NGO Opción Legal set up (and funded) networks of university legal clinics focussed on migration and human rights.

Interestingly, the IOM, a key player in the Colombian humanitarian response to displacement –that has received harsh criticisms internationally for lacking a protection mandate– has begun to include human rights protection as training and workshops’ subject for health community leaders in the country. These interactions with academia extended to other international agencies like PAHO that funded dialogic trainings for humanitarian and medical staff (that I personally coordinated earlier this year).

Since we mentioned the IOM, an interesting initiative with potential in terms of promoting grassroot participation as an element of a HRBA to health is the constitution of networks of leaders across the country, engaged in activities around disease prevention, health education and information, as well as in the identification of cases to be referred to the health system or humanitarian actors.   They may constitute the first step towards the creation of fully formed community health committees with the potential to participate in health policymaking.

Final Remarks?

If development cooperation and contributions from non-state entities prove inadequate in responding to states’ human rights obligations, am I correct to say that state authorities should explore alternative measures and take back responsibility to fulfil their international obligations?

When we talk about polity outsiders like migrants, normative and operational levels often do not match, and technocratic and political concerns inevitably kick in. Similar trade-offs –together with some degree of institutional weakness– may explain why, in the case of irregular migrants, international treaties and constitutional jurisprudence has not been mirrored in sufficiently inclusive health policy and service provision.

More research is necessary to understand how different actors understand and implement, in context, a HRBA to health and migration, to then identify routes which could make human rights effective. At the bare minimum a HRBA should demand enhancing representative and effective participatory scenarios and different forms of accountability (beyond justice individual cases) and that: 

“state, donors, and international agencies [and civil society] comply with legal standards that help identify the core minimum threshold of entitlements to health […], making clear that […] realisation of a given right requires policy and behavioural change in the state as ‘duty-bearer’ to protect, respect, and fulfil such rights”.

Given the “highly juridified states of dispossessions” that vulnerable migrant populations experience (in Colombia and elsewhere) and the power exercised by a complex net of norms, actors and initiatives in areas of health and migration, there are no easy solutions, and one must be aware of what law could and equally could not do on its own. Embarking on a human rights-based interdisciplinary and intersectoral work may serve as a pivotal stride towards mitigating the ambivalence that migrant populations often encounter within liberal democracies.

Photo taken by S. Angeleri in June 2022, humanitarian primary health care centre in the town of Villa del Rosario, Colombia, at the border with Venezuela