Deportability Status as Basis for Human Rights Claims – Irregularised Migrants’ Right to Health Care in Sweden

Year: 2017

Type of text: Academic article

Published by:  Nordic Journal of Human Rights

Language: English

Author: Anna Lundberg & Mikael Spång

Pages: 33 

Available at:   https://www.tandfonline.com/doi/abs/10.1080/18918131.2017.1285953?journalCode=rnhr20

Short description of text 

The article discusses the issue of the right to health care for irregularised migrants in Sweden, from a human rights perspective, in the light of the extended right to health care for irregularised migrants that came into effect through a new legal Act in 2013. It shows how the Act constructs “deportability” as a legal category and basis for claiming rights to health care and the problems involved in this. It argues that the 2013 Act raises issues that relate to the broader question of how people can claim rights. It includes a presentation of previous research on irregular migration and social rights and an overview of the political debate before the 2013 Act. 

Most important results

– ‘The new Act clearly means that legal status may be significant for what kind of health care people are entitled to’ (p. 19). 

– ‘From the perspective of the legislator it was crucial to ensure that the extended rights legislation would not result in people moving to Sweden in order to receive health care. Therefore, a new legal category of residents emerged in the legislative work. This was expressed in terms of a double negative: The law refers to persons whose stay was neither equal to permanent residence, nor only temporary. While the latter are for example tourists’ short stay, permanent implies jurisdictional basis in authorised residence. Further, there was a profound plea in the preparation of the 2013-law to protect the Swedish welfare state by holding on to exclusionary politics. This was mainly done through separating irregularised migrants from other groups and by repeated and varied ways of describing members of this category as those lacking permit, those who have not applied for permit, or those who have not received authorisation from Swedish authorities to reside in the country’ (p. 20). 

– ‘When looking closer at the categorisations in the regulation, the issue of on what basis a person can make claims for rights, gets even more complicated. While the basis of claiming rights was both defined and not defined in relation to territoriality, in the territorial definition it is said that the law refers to persons whose stay is neither equal to temporary or permanent residence – deportability never ceases – nor only temporary, as in tourists’ short stay. Hence, the lack of legal status marked by these paradoxes subsequently became constitutive of the rights’ (p. 25). 

– ‘One might argue that the CRC had a double function in the discussion about the 2013 law. Sweden’s commitment to the CRC, and the obviously helpless situation for irregularised children, led to a decision to give extended rights of health care to persons under the age of 18. Yet, the discussion about CRC and how it was used in the preparatory work, also served to limit rights in general by focusing on children–specific rights. Eventually, in negotiations about where to draw the line for access to health care, a certain a limited right to health care was considered necessary also for adults. This was finally done through the distinct law adopted in 2012, where deportability became constitutive for rights claiming’ (p. 29). 

– ‘We have demonstrated that the preparatory work – from the enquiry to government proposition – for the 2013 act serves to uphold a categorised health care system and a basis for rights based on deportability through a variety of practices. These include; separation of different health care laws; limiting the rights of adults to health care which ‘cannot be deferred’ regardless of the fact that human rights treaties stipulate equal access, and applying the CRC in the argumentation for such limitations; evading discussions about accountability; and without providing clear interpretations of human rights obligations’ (p. 30).  

– ‘We have seen little advocacy directed at advancing the idea of rights linked to personhood rather than to residence permit. Overall, a tapering of rights through practices of categorisation of rights-holders in our case led to a reinvention of human rights as linked to legal status rather than to personhood. This to some extent both confirms Bosniak’s reasoning about ethical territoriality, and opens up for access to rights for ‘stayers’ who are irregularised […] Rather than developing a legal system and proposing a law where rights are decoupled from citizenship, attention and efforts to ensure the protection of children’s rights seemed to be regarded as a compensation for not extending more rights for persons turned 18. While in most respects, categorisations are un-problematic; tourists, visiting scholars etc. have the backing from their embassy, i.e. as citizens in their home state. But this is not the case for irregular migration and this fact contains an important lesson’ (p. 31). 

– ‘Obligations under international law were effectively shunted down to local health care administration, and individual physicians were converted into ‘migration managers’. Here, on micro level through the scope for interpretation of the law in question, is undoubtedly also space for challenging exclusionary legislations. To us it remains clear that a formal category of deportability as a legal basis for rights claims will in the long-term lead to greater inequalities in society and an expansion of the ubiquitous ‘deportation regime’, which involves legislative procedures of reproduction of human beings as ‘homo sacers’ in the Agamben-sense of the term. By accepting the exclusion of irregularised residents from state obligations, without the state being held accountable, does not accord with the rule of law. This paradox, as we have demonstrated, is deeply embedded in Swedish legislation’ (p. 32).

Theoretical perspective/framework

‘Ethical territoriality’ approach to rights (Bosniak) 

Suggestions for further research

How human rights emerge and are reproduced in local context, the meaning of categorisations and inequalities in broader light need and local enactments of equity as well as how those in power may be held accountable for adverse distinctions.

Summarized by: Alva Nissen