ABSTRACT
The protection of migrants’ human rights, including migrants’ human right to health, reveals the tension between human rights and citizens’ rights. This tension is a fundamental feature of the current international legal order, including the human rights regime, and, as will be sketched out below, a feature so essential that it cannot and should not be abolished hastily. Rather, this tension should be made to work as a ‘fruitful tension’ (Besson 2012, p. 353) that gradually increases the rights of migrants 1 within their host countries, eventually offering them the possibility to obtain the whole range of citizens’ rights including franchise, reflecting their integration into the social, economic, cultural and political life of the host community through permanent residency or even naturalisation. As shall be shown, the workings of this ‘fruitful tension’ can be observed in the interaction between international and domestic human rights law, including between domestic legislation, regional and international treaty provisions and jurisprudence relating to the right to health of migrants. On the other hand, migration policies adopted by (populist) politicians in recent years in many European countries – including Germany, the United Kingdom and at European Union (EU) level – threaten to undermine this productive tension. This leads to both the de facto barring of distinct categories of migrants from entering European states and the setting up of additional hurdles to the gradual integration of migrants who already are in the territories of European states into their host communities. The latter happens inter alia through policies that restrict migrants’ access to health care and other essential public services.
