Austerity, Universal Healthcare and Undocumented Immigrants in Spain: How to strike the right balance between guaranteeing the financial sustainability of public healthcare and the requirement to provide healthcare to all persons?
In April 2012 the Spanish Populist Party passed the Royal Decree Law (RDL) 16 of 2012, which had the effect of excluding undocumented migrants from receiving any publicly funded healthcare. This decision was considered as one of the harshest austerity measures adopted by the Spanish government at the time. The reasons behind the adoption of this RDL concerned the reduction of public expenditure as a result of the Spanish economic crisis in 2008. This blogpost will discuss three key themes of the Spanish government’s decision to pass the Royal Decree Law (RDL) 16 of 2012: the features of the RDL (and features of RDLs more generally); the reactions of Spain’s Autonomous Communities’ and the Constitutional Court to the RDL; and the impact of RDL 16 of 2012 on undocumented immigrants in Spain. This blogpost will also address the Spanish government’s decision to effectively withdraw RDL 16 of 2012 or replace it with RDL 7 of 2018, which, effectively, states that the right to health constitutes a fundamental right for all human beings, thus meaning that the government/executive cannot exclude certain groups of people from benefiting from this right.
The Royal Decree Law 16 of 2012: An opportunity to reduce public expenditure through forbidding access to health of undocumented immigrants?
RDL 16 of 2012 had the effect of excluding undocumented migrants from receiving any publicly funded healthcare. Generally, in the Spanish legal system RDLs refer to Royal Decree Law (Real Decreto Ley) and they are a source of law emanated by the executive power, usually implemented in cases of urgency and necessity. An important characteristic to note regarding RDLs is that their regulation should not adversely affect the rights and liberties of citizens outlined in Part One of the Spanish Constitution 1978, namely the fundamental rights. In Spanish law fundamental rights are inherent to its citizens (they are known as positive human rights/ inalienable rights) and because of this they enjoy the maximum legal protection provided for by the Spanish Constitution. Furthermore, with the exception of the fundamental rights enshrined in Article 23, which refers to participation of citizens in public affairs (right to universal suffrage), non-Spanish nationals are protected by the fundamental rights. This means that undocumented migrants have fundamental rights, as confirmed by judgment 115/1987 of Spain’s Constitutional Court (the highest Court in Spain).
The purpose of this Royal Decree Law was aimed at containing public expenditure in response to the economic crisis that hit Spain (and other European countries) in 2008. Due to this, undocumented migrants were only granted publicly financed health care in a certain number of circumstances, for example, emergency care, maternal care, children under 18, asylum seekers and victims of human trafficking. The implementation of this decree was seen as an ‘urgent measure to guarantee the sustainability of the National Health System and improve the quality and the safety of its services’. This aim seems to contradict itself in the sense that how can the Spain’s National Health System improve the safety of its services by excluding a vulnerable group from accessing said services? The RDL16 of 2012 was perceived as ‘one of the most controversial measures’ in that it, effectively, redefined ‘who would be entitled to publicly financed health care’. This controversy was certainly seen in the reactions of Spain’s Autonomous Communities particularly in their reluctance to apply, or rather, adhere to the RDL 16 of 2012.
The Reaction to the Royal Decree Law 16 of 2012: Does the reluctance of Spain’s Autonomous Communities to adhere to RDL 16 of 2012 have any impact on the Constitutional Court’s decisions’?
The reaction to RDL 16 of 2012 varied across Spain’s seventeen Autonomous Communities. The majority of Autonomous Communities (except from Castile and Leon, and La Rioja) opted to neutralize the impact of the RDL on undocumented immigrant access to public health care. For example, some chose to guarantee universal access acknowledging rights of all registered persons (Valencia) and others argued that the RDL was unconstitutional (Andalusia, the Basque Country, the Canary Islands, Catalonia, Navarre and Asturias). However, some regions stipulated that as a requirement to access public health care undocumented immigrants must prove that they have insufficient economic resources (the threshold of which is established by each individual Autonomous Community) as well as fulfilling the minimum residence period in that region. Despite the efforts of some Autonomous Communities, Spain’s central government filed appeals of unconstitutionality to the Autonomous Communities that had enacted their own laws providing for the universal healthcare of undocumented immigrants and also stipulated that the RDL was in line with the Spanish Constitution (Judgment 139 of 2016). Furthermore, the Constitutional Court ruled that the efforts to acknowledge the rights of all registered persons by Valencia was unconstitutional. The Spanish Government justified the implementation of RDL 16 of 2012 as a measure to protect the right to health (Article 43 of the Spanish Constitution) as "the absence of common rules on insurance throughout the national territory, the unequal growth in benefits of the catalog, the lack of adaptation of some of them to the socioeconomic reality and the lack of rigor and emphasis on the efficiency of the system have led the National Health System to a situation of serious economic difficulty without precedent since its creation (Judgment 139 of 2016).” Therefore, RDL 16 of 2012 was considered necessary because “efficiency had been lost in the management of available resources, which has resulted in high delinquency and an unsustainable deficit in public health accounts. It is therefore essential to adopt urgent measures that guarantee their future and that help to prevent this problem from persisting (Judgment 139 of 2016).”
The Impact of Royal Decree Law 16 of 2012 on Undocumented Immigrants: Does the exclusion of undocumented immigrants result in savings in public expenditure?
Due to the fact that RDL 16 of 2012, stipulating for the exclusion of undocumented immigrants from universal healthcare, coincided with Spain’s economic crisis it is difficult to identify the specific effects that the RDL had on undocumented immigrants and whether or not savings were made in terms of public expenditure. However, in 2017 according to the REDER report approximately 873,000 individuals were stripped of their NHS card since the entry into force of the RDL, the vast majority being undocumented immigrants (Peralta-Gallego et.al, 2018: 1158). The Spanish Ministry of Health have yet to publish figures regarding the economic impact of the RDL, for example the savings made from applying these provisions. As noted by Peralta-Gallego et.al (2018: 1159) ‘restricting access to primary care for this population subgroup may have led to an increase in the use of emergency services, which became the only form of access for many’. This hypothesis seems to justify the current situation for undocumented immigrants in Spain when it comes to universal healthcare in that the Spanish government proposed plans to prepare a new Royal Decree Law with the aim of superseding/eliminating the Royal Decree Law 16 of 2012.
Royal Decree Law 7 of 2018: Has the right balance been struck between guaranteeing the financial sustainability of public health care and the requirement to provide healthcare to all persons?
In July 2018, the Minister of Health, Carmen Montón, presented the Council of Ministers with plans to reopen the dialogue concerning universal healthcare. She stipulated the need for a dialogue with all Autonomous Communities in order to ensure that every individual in Spain enjoys the right to universal healthcare, the right to the protection of their health through the ability to access health services without barriers or distinctions amongst different classes of people. After a long debate the Spanish government issued Royal Decree Law 7 of 2018, which effectively re-established universal access to healthcare in Spain. The Royal Decree Law 7 of 2018 recognises that the importance of protecting the right to health, namely because it constitutes a fundamental right for all human beings ‘over which there can be no discrimination whatsoever – general or particular – with regard to regularization requirements for foreign persons’.
Why did Spain decide to repeal the previous RDL 16 of 2012 and implement the new Decree Royal Law 7 of 2018? It has been argued that the previous RDL 16 of 2012 ‘failed to legally guarantee the right balance between the need to ensure the financial sustainability of public healthcare and the inarguable requirement to effectively provide the right to healthcare to all persons’. Furthermore, it has been suggested that Spain’s austerity measure here to exclude undocumented immigrants from publicly healthcare were based exclusively on economic criteria with regard to reducing the public sector financial debt and on short-term arguments, which did not ‘demonstrate an improved efficiency in healthcare’.
To conclude, this blog post has addressed the controversy associated with RDL 16 of 2012 in that it effectively excluded undocumented immigrants in Spain from receiving primary healthcare. The adoption of this Decree by the Spanish government, as a way to ‘guarantee the financial sustainability of public healthcare, was questionable and unjustified. It was questionable in the sense that according to the Spanish Ministry of Health ‘it is always cheaper to treat someone through primary health care than to wait for them to go to the emergency room’, which seemingly raises questions as to the effectiveness of the RDL 16 of 2012 by only allowing access to healthcare in the circumstances outline previously in this above in this blog post. Furthermore, the adoption of the RDL 16 of 2012 raises questions as to its justification in the sense that it seems to contradict the right of equality, which not only prohibits discrimination (for reasons of reasons of birth, race, sex, religion, opinion or any other personal or social condition or circumstance), but it also constitutes a fundamental right in Part One of the Spanish Constitution of 1978. Spain’s decision to implement a new RDL 7 of 2018 can be seen as a way to move forward or to rectify its mistake in denying healthcare from undocumented immigrants in the first place.
Peralta-Gallego, L., Gené-Badia, J., Gallo, P., 2018. Effects of undocumented immigrants exclusion from health care coverage in Spain. Health Policy, [e-journal] 112, pp. 1155-1160. DOI: 10.1016/j.healthpol.2018.08.011.