Illness Clause

Definition of the Term and Background

The “illness clause” is a term coined by Miriam Ticktin (2006) and refers to France’s Article 12bis-11º. This article discusses the details of a law put forth by France to grant temporary residency to foreigners living with terminal illness who would remain inappropriately treated if they were to seek medical care in their home country (France, 1998). The law was formed in 1998 in response to human-rights movements and efforts that entailed “arbitrary treatment” of sick individuals. In other words, prior to the illness clause, sick foreigners were inconsistently treated and oftentimes deported. Individuals who have successfully received a residency permit through the illness clause are eligible to apply for full citizenship after a minimum of five years of French residency.

Historical or Topical Context

Beginning in 1990, a Parisian suburb had already began taking sickness into consideration when accepting requests by foreigners to receive legal papers. These individuals had to go through a process of referral—first, they had to be referred to immigration officials by their doctors, and then to state health officials by the immigration officials (Ticktin 2006:37) In 1998, when the law was officially passed, responsibility for immigration matters were passed from the French Ministry of Interior to the French Ministry of Health. The overall trajectory of referral, however, remained more or less the same. If/when individuals reached the level of state health officials, it was more or less to the official’s discretion to grant the individual (also referred to as “the sans papiers”) citizenship or not. For the most part, residency requests were received in the mail and then organized by administrative staffed and passed along to doctors. This health official then had the power to determine if the sans papiers would receive a residency permit and, if so, for what duration.

A French political cartoon depicting the lack of guarantee in the trajectory towards receiving legal documentation (Pancho, n.d.)

Controversy/Perspectives

Much of the controversy surrounding the clause stems from the lack of consistency around the process. The law enables people with life-threating illness residency, but there is no documentation of what constitutes “life-threatening.” Further, in order to be eligible for residency, the sans papier must not have access to adequate health care in his/her home country. An issue with this, though, is that information regarding whether or not home access to healthcare is readily available is not easily accessible for state health officials. The legalization of the illness clause was performed in an attempt to create consistency and system to the process of granting residency to sans papiers, but it ended up have little beneficial effect. Instead, the clause has instilled a new method founded primarily in sympathy and compassion—leaving the process of granting papers even more subjective than before.

Another key area of controversy is the illness clause’s influence on the black market. Individuals who do successfully receive residency based on a life-threatening pathology are generally not granted the right to work. The permits allow them to rent apartments, open bank accounts, and travel within the country but do not provide them with the means to do so. As a result, these individuals are forced into black market labor if they want to earn money to live on. This depicts the illness clause as further exploitation masked in hope.

How it Relates to the Politics of Health

The illness clause relates to the politics of health by acting as a form of biological citizenship. As Adriana Petryna (2004) describes in her works, biological citizenship refers to either individual or collective welfare claims made by vulnerable populations. Essentially, their citizenship status is determined based on their biological bodies. This applies to the case of France’s illness clause, as the law uses the status of the individual’s physical body to determine whether or not they are worthy of being granted residency and citizenship. In doing so, other aspects of the individual are undermined and it is his/her physical state that becomes the most important feature in citizenship.

References

France. Le ministre des affaires étrangères. LOI no 98-349 du 11 mai 1998 relative à l’entrée et au séjour des étrangers en France et au droit d’asile (1). By Jacques Chirac, Lionel Jospin, Martine Aubry, Elisabeth Guigou, Claude Allègre, Jean’Pierre Chevènement, Hubert Védrine, and Jean-Jack Queyranne. 1998.

Pancho. “Les Sans Papiers.” Cartoon. In Solidaires étudiant-e-s.

Petryna, A. (2004) ‘Biological citizenship: The science and politics of Chernobyl-Exposed populations’, Osiris, 19, pp. 250–265. doi: 10.1086/649405.

Ticktin, Miriam. “Where ethics and politics meet.” American Ethnologist 33, no. 1 (February 2006): 33-49. Accessed April 12, 2017. doi:10.1525/ae.2006.33.1.33.