| Department of Social Policy and Social
Work - University of Tampere - Finland Social
Rights of European Citizens Access to health care and social welfare for foreign nationalsHåkan Stoor
Introduction – social protection and the
freedom of movement Introduction – social protection and the freedom of movementThis paper will deal with the access to health care and social welfare of foreign nationals in Finland. The issue will be analysed as a process of adaptation to community law. At the end, a pending reform of the social insurance system will be addressed as an indication of future development. The concept "social protection" will be used as a general notion comprising all kinds of social insurance, health care and social welfare. "Social welfare" will include both social care services and social assistance (income support in cash). The system of social protection in Finland can be divided into three major branches:
This threefold division is reflected in the administration: Municipal authorities provide the social and health care services. The Social Insurance Institution (SII, KELA) provides for the general social security. Private sector insurance companies, trade union unemployment funds and the SII are in charge of the employment-related benefits. The municipal services and the general social security are based on residence, whereas the employment-related insurance is based on work. In 1994, when Finland joined the European Economic Area (EEA) the Community law on the free movement of persons entered into force. As these rules stand today, they entitle every citizen of the Union and members of their family to enter and reside in Finland. However, this right is not unconditional, as will be shown below. Economically active persons are entitled to equal treatment in social protection according to Regulations 1408/71 and 1612/68. The former applies to social insurance and health care. The latter applies to all "social and tax advantages" for workers, including welfare benefits. The scope of community law is continuously widening. There are several pending proposals on the extension of the scope of Regulation 1408/71 and the residence rights of third country nationals (= non-EEA nationals).1 The Schengen agreement will abolish the frontier controls and extend the short-time movement rights of third country nationals.2 If we consider the branches of social protection based on residence, the most important influence of the community law has concerned the rules on National pension. The amount of the pension was made dependent on the time of residence in Finland.3 As regards the other branches, a more indirect influence can be seen in the rules on residence. In 1994 uniform rules on habitual residence were adopted in the Act on Application of Residence Based Social Security, regarding the SII-benefits, and in the Municipal Residence Act, regarding the municipal services.4 According to the new rules, a person moving to Finland from abroad is regarded to be habitually resident if
These rules apply when nothing else is provided for by international agreements on social security or community law. For instance, residence requirements cannot restrict the access to social protection for persons covered by Regulation 1408/71 or 1612/68. The intention-requirement was a new one: According to the former law and practice, a one-year residence permit had usually been enough to prove habitual residence.5 In the preparatory works it was alleged that more stringent rules were needed to exclude illegal immigrants and migrant job-seekers from social protection.6 The new rules on habitual residence have not been uniformly applied. The SII has interpreted the intention-requirement more strictly than the Population register authorities. The largest group of immigrants excluded from SII-benefits by the new rules is foreign students.7 The practice of the Population Registry authorities varies in different parts of the country. In many cities a one-year legal residence fulfils the intention-requirement, also regarding students.8 This is logical, considering that Finland does not require a health insurance as a prerequisite for a residence permit, even though community law would provide for this.9 In 1995 the Constitution was amended with a new catalogue of fundamental rights and freedoms, introducing constitutional social rights and extending the personal scope of the rights to everyone, not only Finnish citizens. According to the new rules, everyone is entitled to basic subsistence and care. Furthermore, everyone shall be protected by law against sickness, unemployment and other social risks.10 It is obvious that this reform has created a tension between the extended constitutional rights and the restricted social rights. However, it must be pointed out that the constitutional rights are not absolute in that they would exclude any reasonable restrictions regarding, for instance, the length of residence.11 Municipal services to non-residentsNon-residents are, on the one hand, persons who do not meet the one-year residence requirement, e.g. short time workers, job-seekers, tourists, on the other hand, persons who do not meet the intention-requirement of habitual residence. Asylum seekers are covered by special legislation until they receive a residence permit.12 However, in social welfare the rules of habitual residence are very much modified by the Social Welfare Act, providing for the equal treatment of habitual and temporary residents, if the person does not have a municipal residence anywhere in Finland.13
Because of these rules, for instance, a short time EC worker does not need to invoke regulation 1612/68 for access to social services. Also, job-seekers are entitled to these benefits, even if they would not be so according to community law.15 Access to health care for some categories of non-residents is provided for by Community law and social security agreements. The rights of EEA nationals vary from the extensive rights of the economically-active to immediate health care for temporary visitors.16 Also, many third country nationals resident in EEA Member States are entitled to immediate health care by virtue of so called secondary (bilateral) social security agreements.17 As regards States outside the EEA, there are social security agreement with Estonia, Hungary, Australia and Quebec, including provisions on health care to different categories of citizens.
As regards persons not covered by these rules, there is an obligation in the health care legislation to provide urgent health care for anyone in need thereof.19 However, this right is considerably hampered by the fact that a person not resident in a municipality may be charged with the actual costs of the treatment, whereas municipal residents only pay a subsidised fee.20 This arrangement was introduced in 1993. It makes the position of a non-resident dependent on Community law, international agreements, a private health insurance or ultimately social assistance. According to a pending reform of the Aliens’ Act, it is likely that a health insurance will be required of persons applying for a visa in the future.21 Social assistanceThe particular feature of social assistance is that on the one hand it is an implementation of the constitutional right to basic subsistence. On the other hand, receiving social assistance may indicate that the applicant is unable to support himself, which may affect his right of residence according to immigration law. The original rules on social assistance of the Social Welfare Act did not impose any condition of residence. The sole criterion was a lack of other means of subsistence:22
The new Act on Social Assistance of 1997 is more restrictive: The act introduces the concept of "habitual staying" (vakinainen oleskelu), which is intended to exclude temporary visitors, such as tourists. Anyone staying temporarily is still entitled to urgent help, including a basic subsistence. Person staying more permanently in Finland cannot be barred from social assistance. Thus a migrant job-seeker may, for example, supplement his unemployment benefit with social assistance. According to a pending reform, social assistance to immigrants during their first three years of residence will be granted in the form of a new benefit called "integration support" (kotoutumistuki). The full amount of the benefit will be paid only on condition that the applicant complies with an "integration programme", consisting of various activities that are likely to promote his integration in the Finnish society.23 The arrangement reflects the current policy to make subsistence benefits conditional on the applicant’s own behaviour.24 The second question on social assistance is the link of this benefit to immigration law. According to the Aliens' Act a foreign national may be refused entry or deported if he has insufficient funds to support himself. His application for a residence permit may also be rejected.25 In this respect poor foreign nationals are "the last vagrants" of the legal system – persons liable to repressive sanctions because of a lack of support.26
However, the sanctions of immigration law only apply during a rather short period after entry.28 There are also international agreements imposing absolute time limits to deportation.29 As to EEA nationals, the restrictions are even more stringent. First, the economic resources of EEA nationals may not be checked on entry:
Second, an EEA worker cannot be expelled on grounds of insufficient funds, and obviously nor can a job-seeker.31 It should be born in mind that the concept of a worker has been given a very broad interpretation in community law, comprising irregular working-conditions, part-time work and training.32 A former worker who becomes involuntarily unemployed may also retain his status for a considerable time, for instance during studies or work seeking.
Third, persons not engaged in economic activities must rely on the general residence directives of 1990, according to which they must have enough resources to "avoid becoming a burden on the social assistance system of the host Member State". Consequently, their right of residence may cease if they do not fulfil this requirement.34 – In fact, some 2/3 of the EEA residence permits in Finland are issued to persons relying on the general residence directives.35 If we consider the case of Mr C above as an example, would C be entitled to social assistance? According to national Finnish law, the answer is yes, as regards basic subsistence.36 If he receives assistance, can he be required to leave? Community law is unclear in this respect.37 Would an economically non-active EEA national be at the risk of deportation if he applies for assistance after having obtained a residence permit (on the grounds of self-sufficiency)? The Aliens' Act provides for this, and so does Community law. However, from a constitutional point of view, such measures would imply a heavy sanction on the individual and de facto deter him from availing himself of the fundamental right to basic subsistence. Obviously the answer to the question must take account of length of stay, the possibilities of control and the amount of assistance. This state of affairs seems to reflect a difference in the way we think about social rights and civil and political rights. It would not be acceptable to withdraw someone’s right of residence if he takes advantage of the freedom of speech or freedom of religion.38 However, the connection between social assistance and the constitutional right to basic subsistence makes it necessary to also consider the measures of immigration law from this point of view. Reform of the concept of residenceAccording to the Government program on immigration policy the possibilities of harmonising the concepts of habitual residence are to be investigated.39 A working group at the Ministry of Social Affairs has presented a report on the most urgent measures.40 According to the report, the concept of residence is to be clarified in the Application Act. Habitual residence would be equivalent to two years of legal residence or six months of work. It is alleged to be unreasonable that a person working and paying taxes should not be covered by e.g. the health insurance. Foreign students would still be the outcasts of the system; an express provision to this effect is suggested. On the other hand, a significant exception is introduced: students would be eligible for reimbursements of outpatient medical expenses from the health insurance (doctors' fees, drugs, travel costs). The concept of municipal residence is going to be examined later – a report is foreseen in 1999. However, according to the present report, the 2-year requirement cannot be introduced as a general rule. Instead of a harmonisation of requirements, a larger differentiation of social rights is suggested: Access to health care should arise after a fairly short time of residence, while national pensions should be reserved for permanent residents. The entitlement to other benefits should lie somewhere between these extremes.41 ConclusionsI will try to draw some general conclusions from the issues above. It is obvious that the lowering of the external frontiers result in the construction of "internal barriers" to the access to social benefits. These rules will especially be designed to cope with an increasing number of temporary residents. Since these barriers must often be waived in respect of EEA nationals, they will mainly affect third country nationals. Extensive residence requirements may also be problematic from a Constitutional or Human Rights point of view. The significance of work as the principal criterion for access to social protection seems to increase. The status of an EEA worker has been a shortcut to social protection since the EC legislation became applicable in 1994. Now it is suggested that this criterion should be extended to immigrants from other countries as well (but not to members of their families). If this development goes on, a fundamental principle of social protection will be restricted, the principle of universality. In fact, universality has been the safeguard of equality in Finnish social protection, not the level of benefits, which is often dependent on previous earnings. On the other hand the municipal health and welfare services are more genuinely characterised by universality than the social insurance. This feature seems to be even more evident in the future. Finally, the Constitutional Reform of 1995 seems to counterbalance the trends outlined above. The new fundamental rights provide normative safeguards for the welfare state on the level of the system of social protection as well as on the individual level. On the system-level the constitution recognises the principle of universality. On the individual level it provides for a right to basic social protection and equality of treatment. Notes1. or details on community law on free movement, see Martin & Guild. As to the implementation i Finland see Stoor pp 25-30. 2. As to regulation 1408/71, see for instance Sakslin et.al., appendix II. As to residence rights, see COM(97) 387 final: proposal for a council act on rules for the admission of third country nationals (Parliamentary documents (Finland) U 53/1997); and COM (97)586 final: Communication for an action plan for free movement of workers. 3. See Government Bill HE 20/1998 (Accession to the Schengen agreements) 4. Act 547/1993 amending the National Pension Act (kansaneläkelaki) 5. Application Act sections 3 and 9.. Municipal Residence Act s 1 ss 3 and s 4 §. (It may be added that also the SII applies the Municipal Residence Act to benefits not mentioned in the Application Act). 6. Government Bill HE 287/1993 (The Application Act), p 3-5. The Population Data Act (VäestötietoL) section 16 (507/93). 7. Government Bill HE 104/93 (Municipal Residence Act), p. 26. 8. STM 1998:12, p. 34. 9. STM 1998:12, pp. 3, 12, 33 and 59, Ulkomaalainen opiskelija Suomessa. SYL-julkaisu 7/1996, p. 8. 10. Ministry of the Interior Order, määräys 9.2.1995 (08/010/93)., cf. the general residence directives 964-965/90 and 93/96 (persons not engaged in economic activities). It may be added, though, that the municipal authorities providing services are not legally bound by the decision of the Population Registry (Government Bill HE 104/93, p 24.) 11. Consitution Act , chapter II (as amended 969/1995), see also Sakslin (1996). 12. Opinion of the Constitutional Committee of Parliament, PeVM 25/1994, p. 11. 13. Government decision Valtioneuvoston päätös 1607/1992, reform pending, see Government Bill HE 66/1998. 14. Social Welfare Act section 14 subsection 2. The rule was originally adopted to protect persons returning to Finland from abroad, Government Bill HE 102/1981. Cf section 15 of the Act and the Social Welfare Decree s 4. See also Räty, Pantti. 15. The Social Welfare Act (Sosiaalihuoltolaki) s 15. Cf The Nordic Convention on Social Assistance and Social Services, art 4 and 6. 16. Case 316/85 Lebon 1987 ECR 2811. 17. Regulation 1408/71 (workers and the self-employed) and regulation 1612/68 (workers), Regulation 1408/71 art 22c (students), art 22 a (others), Sakslin et.al. and STM 1998:4. 18. The Nordic countries, Germany, Spain, Greece, Luxembourg, see STM 1988:4. Cf also the proposal on extending the scope of 1408/71 to third country nationals resident in the EU, Com (95)284 final (Parliamentary documents (Finland) U 31/1995). 19. Ulkomaalaisten terveyspalveluiden käyttö Top 50 April 1995 – February 1997, Suomen Kuntaliitto (Federation of Finnish Municipalities) 1998 (unpublished). The patients are persons not habitually resident in Finland. There are gaps in the statictical data. 20. Public Health Act, kansanterveyslaki (66/72), section 16, Act on Specialised Hospital Care, erikoissairaanhoitolaki (1062/89), section 30. 21. Act on fees in social and health care, laki sosiaali- ja terveydenhuollon asiakasmaksuista (734/92), section 13 (Decree, asetus 912/92, section 24). 22. Government Bill (amendment of the Aliens’ Act) HE 50/1998 (s 13 a). See also the Government Bill on the accession of Finland to the Schengen agreement, HE 20/1998, in particular pp 30-44 and the proposal of an amendment of the Aliens’ Act p. 84-85. 23. Social Assistance Act, Laki toimeentulotuesta (1412/1997) s 14. see also the Government Bill HE 217/997, p. 24. Cf the Ministry of Social Affairs and Health Instruction Opas 1998:2 (Toimeentulotuki), 6.3.1. 24. Government Bill HE 66/1998 (Laiksi maahanmuuttajien kotouttamisesta ja turvapaikanhakijoiden vastaanotosta), sections 10-15 and 24. 25. See Act 1353/1997 amending the Act on Labour Market Services (Työvoimapalvelulaki) and Social Assistance Act 1412/1997, section 10., Cf the critical Opinion of the Committee for Constitutional Law in Parliament, PeVL 20/1998 (Aliens’ Act) 26. Aliens’ Act, Ulkomaalaislaki, sections 37, 18-21 and. 40, see also Government Bill on the amendment of the Aliens’ Act HE 50/1998. Note that the rules on family reunification (of non-EEA nationals) are going to be revised in a more generous way as regards resources of support (section 18 c subsection 4). 27. In national law, the Vagrancy Act (Irtolaislaki) was repealed in 1987. 28. Directorate of Immigration, Statistical overview 1996. The statistics do not specify the number of decisions on this ground by the Directorate of Immigration (refusal of entry or deportation). 29. Aliens' Act, section 40 item 2. Ministry of the Interior Instruction Ulkomaalaisen karkottaminen 5.7.1994 (15/011/94), p 3/10.2. 30. Nordic Agreement on Social Services and Social Assistance, art 7 (3 years), European Convention on Social and Medical Assistance art 6-7 (5 or 10 years). Finland has not ratified the latter agreement, but is obviously bound by these rules according to the European Social Charter art 13 (4). Nevertheless, Finnish national law is at least as generous as these rules. 31. According to Community law, a tourist is regarded as a "recipient of services" and entitled to freedom of movement, according to art 59 of the EC treaty and Directive 73/148. See Case 286/82 Luisi and Carbone 1984 ECR 377. It is doubtful if this formula applies to C, since "services" in the sense of the EC Treaty are provided for remuneration (art 60) and C had virtually no money (see further Stoor 1998, p 33). Cf . Government Bill HE 50/1998, section 8 a. 32. Case 139/85 Kempf 1986 ECR 1741 (workers), Case 292/89 Antonissen ECR 1991 745, p. 17-18, 22, and Advocate General Darmon p.36-43 (job-seekers). 33. 357/89 Raulin 1992 ECR 3189 (irregular work), 53/81 Levin 1982 ECR 1035 (part-time), 66/85 Lawrie-Blum 1986 ECR 2121 and 3/90 Bernini 1992 ECR 1071 (training), 34. Case C-85/96 María Martínez Sala v Freistaat Bayern, paragrah 32-34, European Court of Justice 12 May 1998. Cf case 39/86 Lair 1988 ECR 3161 and 357/89 Raulin 1992 ECR 3189 (leaving employment for vocational studies). 35. Directives 364-365/90 and 93/96. Martin & Guild, 207-226. 36. In 1995-1997 the receipients of EEA residence cards consisted of three major groups: workers, students and others (directive 964/90), Statistics by the Directorate of Immigration (unpublished). Nb that Nordic citizens do not need residence permits and persons from Sweden comprise the largest group of immigrants from the EEA, see Aliens and International Migration, annex V. 37. Social Assistance Act s14 ss 3. 38. Stoor. pp 31-35. 39. Hidén , p. 105. 40. Government Decision-In-Principle on Immigration and Refugee Policy Programme 1997, section 12.5 (the Enlish translation is inaccurate: the word "housing" is used in stead of "residence"). 41. STM 1998:12. 42. STM 1998:12, pp.58-61. A proposal of a similar reform has been presented in Sweden, see SOU 1997:72. Literature
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Copyright © 1999: Håkan Stoor Håkan Stoor, Senior Lecturer 1.3.1999 - Department of Social Policy and Social Work |