Prime Minister Rajoy’s “Recortes Sanitarios” for Undocumented Immigrants in Spain May Face Constitutional Challenges

Posted By Robert Semones, JILP Member , Sep 25, 2012

It would appear that not all is well in the Kingdom of Spain. Besieged on all sides by wracking fiscal woes, Prime Minister Mariano Rajoy, like a physician of old, has taken up a scalpel to bleed Spain’s debt-clogged arteries through program cuts. Arguably the most controversial of the Rajoy Administration’s cuts is the decision to restrict free, state-sponsored healthcare of undocumented immigrants.

Starting on September 1, 2012, Royal Decree-Law 16/2012 (“Decree”; “Real Decreto-Ley” or “R.D.-Ley” in Spanish) entered into effect. The Decree provides, inter alia, that undocumented immigrants in Spain will now have free access only to basic healthcare—and then only in cases of emergency or pregnancy. The Decree did not modify the existing healthcare rights of undocumented minors under the age of 18; they still enjoy the same free healthcare rights that full Spanish citizens enjoy.

Before Decree 16/2012, all that was required of an undocumented immigrant to receive free health care was to register with the local government of the community where the immigrant was residing. This process (“empadronamiento”), in addition to being free, was typically quite simple; the immigrant needed only to present a passport from her country of origin and some proof that she was physically living within the local community to obtain empadronamiento. Empadronamiento would then confer eligibility to receive a government Health Card, giving the undocumented immigrant free access to the full range of health services the Spanish State offered. 

On September 1, Decree 16/2012 nullified the Health Cards of those without Spanish Legal Residence permits and made Legal Resident status a necessary prerequisite to the issuance of a Health Card. Thus, the simple process of empadronamiento is now no longer by itself sufficient to successfully apply for a Health Card; empadronamiento and legal resident status are both required. The galvanizing rationale behind this heart of Decree 16/2012 was to halt a practice commonly known as “health tourism.” In broad brush, many undocumented immigrants would come to Spain; complete a free, relatively simple empadronamiento; receive a Health Card; use that card to obtain a European Health Insurance Card (“EHIC” in English, “Tarjeta Sanitaria Europea” or “TSE” in Spanish); return to their home countries; and remit to the Spanish Government the bill for medical care received in their home countries.

The Court of Accounts estimated that health tourism was annually costing the cash-strapped Spanish Government around one billion euros. Now, if an undocumented immigrant wishes to enjoy the same, full-range access to healthcare as before and cannot obtain legal resident status (which tends to be the case), the immigrant must first meet certain physical presence requirements and then pay annual premiums to the State—710.40 euros per year (59.20 euros per month) in the case of those between the ages of 18 and 65, and 1,864.80 (155.40 euros per month) in the case of those older than 65.  In essence, undocumented immigrants must now pay to have access to the same full range of health services that Spanish citizens and legal residents receive for free.   

Decree 16/2012 has thus hurtled already-tumbling Spain into further disarray. Many of Spain’s regional governments, even some of which are controlled by Prime Minister Rajoy’s own conservative People’s Party (“Partido Popular” or “PP”), have roundly refused to implement Decree 16/2012, classifying it as an injudicious and dangerous measure. Additionally, the Decree has generated doubts as to the constitutionality of its provisions.

  The General Counsel to the Spanish Bar Association (“Consejo General de la Abogacía Española” or “CGAE”) recently issued a communiqué to Minister of Health, Social Services, and Equality Ana Mato, writing that the Spanish Constitution recognizes the universal and fundamental nature of the right to health as “not tied either to [Spanish] citizenship or to legal residence.”[i] The opposition party, the left-leaning Spanish Socialist Workers’ Party (“Partido Socialista Obrero Español” or “PSOE”), is currently evaluating the possibility of mounting a constitutional challenge to Decree 16/2012 before the Tribunal Constitucional (“TC”). The PSOE justifies this course of action by characterizing the Rajoy Administration’s healthcare cuts as “sowing racism” and xenophobia, declaring that the cuts will only generate increased long-term expenditures that will come out of government coffers.[ii]

The primary arguments for the Decree’s unconstitutionality tend to cluster around three injuries: the denial of a fundamental right guaranteed under the Spanish Constitution; the imposition of unequal treatment in violation not only of the Spanish Constitution, but also the General Public Health Law (“Ley General de Salud Pública” or “LGSP”); and the national government’s encroachment upon powers reserved to the regional spheres of Spain’s Autonomous Communities.[iii] In American constitutional parlance, we might respectively analogize these to a Substantive Due Process claim, an Equal Protection claim, and a Federalism claim.

Are these claims likely to succeed? On the one hand, we see that the newly-instituted monthly premiums that undocumented immigrants must pay to receive the same range of health services that they once received for free strikes a blow against one of the most vulnerable and resourced-starved collectives in the country.  Given the high rate of unemployment in Spain, and the lack of resources and education in the Spanish undocumented immigrant community, it does not seem likely that all members of the class will be able to pay the requisite State premiums every month to access the same level of care as before. Moreover, the LGSP states that, in receiving healthcare, “everyone” has the right not to be discriminated against on the bases of “birth, racial origin, ethnicity, sex, religious convictions or opinions, age, disability, sexual orientation or identity, sickness, or any other social or personal condition or circumstance.” This provision incorporates language found in Article 14 of the Spanish Constitution and would seem to provide fertile ground for a particularly robust Equal Protection claim.  

On the other hand, the nondiscriminatory provision of the LGSP is listed under the heading “Rights of Citizens.” From a purely textualist perspective, one could quite reasonably conclude that “everyone” in the pertinent part of the LGSP means that “every citizen” has the right not to be discriminated against on any of the bases listed.  Too, as several members of the PP have pointed out, the current cuts and resulting premiums do not leave undocumented immigrants without some minimum degree of health protection. At a meeting with National Health System councilors in Valladolid, Minister Ana Mato assured that “no one would go unattended,” reiterating that the State will continue to provide not only free emergency care, but also the same full range of free care to minors and pregnant women as before Decree 16/2012. Article 43.1 of the Spanish Constitution recognizes that a right to health protection exists, but this requires only some constitutionally-minimum level of care. Article 43.1 may not require the State to provide free preventative care to preserve an individual’s right to health protection; Article 43.1 instead may simply require the State to protect an individual’s life in dire situations, which the Rajoy Administration’s cuts arguably still do.

            All that is known now with any appreciable degree of certainty is that both the supporters and the detractors of the Decree will not back down without a fight. If you are performing research on this topic and would like to receive relevant information and resources, or if you have any questions concerning the above discussion, please email Robert Semones at rasemones@ucdavis.edu.     



[i] See La Abogacía Española, contraria a que el Gobierno restrinja el derecho de salud a los inmigrantes, Diario Jurídico (Aug. 22, 2012), http://www.diariojuridico.com/actualidad/la-abogacia-espanola-contraria-a-que-el-gobierno-restrinja-el-derecho-de-salud-a-los-inmigrantes.html (detailing the content of the Spanish Bar Association’s comuniqué to Ana Mato).

[ii] Hernando: al Gobierno "le sobran" todas las personas que suponen un gasto, como inmigrantes sin papeles o los parados que cobran 400 euros; El PSOE estudiará la posibilidad de interponer un recurso de inconstitucionalidad contra los recortes en materia sanitaria para la población inmigrante, PSOE Sala de Prensa (Aug. 11, 2012),  http://www.psoe.es/ambito/saladeprensa/pressnotes/index.do?id=660148&action=View

[iii] The “Comunidades Autónomas” are subnational units of government which may be likened to states or provinces. They include Andalucía, Cataluña, and Valencia.