Radheesh Ameresekere*<\/p>\n\n\n\n
I. Introduction<\/p>\n\n\n\n
In the U.S., hospitals regularly deport ill and undocumented migrant patients<\/a>, largely to avoid the cost of long-term care. Deportation occurs when an undocumented migrant is removed from U.S. territory to their home country. While the absence of regulatory reporting means exact figures are unavailable, <\/a>historical data<\/a> suggests that more than 800 cases of successful or attempted medical deportation were documented in the U.S. between 2006 and 2012. More recently, the Free Migration project reported<\/a> 19 cases through its hotline and referrals impacting uninsured patients facing medical deportation between 2014 and 2024 and specifically reported 6 cases in the first half of 2025 alone. Despite its frequency, however, medical deportation remains ethically and legally controversial. Much of the criticism stems from a significant lack of federal oversight of the conditions that render these deportations legitimate.<\/p>\n\n\n\n In her seminal essay on the topic, <\/a>Kit Johnson<\/a> has claimed that this leads to a regulatory vacuum, creating a system of de facto<\/em> extrajudicial deportations where hospitals act as immigration agents. Hospitals initiate medical deportations of ill migrants by arranging private air transfers to a patient\u2019s country of origin independently of the Department of Homeland Security (DHS), often in coordination with foreign consulates and without a formal removal order from an immigration court. The patient is thus functionally expelled from U.S. territory through a medical transfer rather than through the ordinary statutory deportation process administered by the DHS or United States Immigration and Customs Enforcement (ICE). Drawing on U.S. constitutional doctrine, she argues that hospitals do not have jurisdiction to deport persons and proposes a new administrative process whereby hospitals can call upon the DHS to initiate the expedited removal and transfer of medically needy undocumented migrants via ICE. While insightful, her article is silent on U.S. obligations under international law governing deportation.<\/p>\n\n\n\n In fact, little to no attention has been paid in contemporary literature to whether these deportations are permissible under international law. Such considerations are particularly salient, as deportation is the coercive removal of a person from a sovereign territory and their relocation to their home country and thus falls squarely within the scope of international human rights law. Accordingly, this piece engages these questions in two parts. In the first part, it argues that extrajudicial deportations, especially if based on cost-saving, violate principles of lawfulness, non-arbitrariness, and non-refoulement under international law. In the subsequent part, it suggests that federal oversight must not merely stipulate the legitimate scope of deporting authority\u2014as Johnson does\u2014but also the conditions under which deportations are legitimate under international law, namely, when a patient constitutes a threat to national security.<\/p>\n\n\n\n II. Obligations Under International Law<\/p>\n\n\n\n A. Lawfulness<\/em><\/p>\n\n\n\n Article 13 of the International Covenant on Civil and Political Rights<\/em><\/a> (ICCPR) makes it clear that a person in territories of state parties may be \u201cexpelled therefrom only in pursuance of a decision reached in accordance with law and shall [\u2026] be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.\u201d The ICCPR\u2019s <\/a>General Comment No. 15<\/a> reinforces that expulsion must be in accordance with law and not arbitrary, which remains a standard that binds all state agents and private actors exercising governmental authority. Deportations conducted outside a public, legal framework, therefore, cannot satisfy Article 13\u2019s requirement of lawfulness. Even if these removals would otherwise be tolerated by domestic authorities such as the DHS, international law nonetheless demands that coercive acts of the state be grounded in legally established procedures (i.e., in accordance with lawfulness).<\/p>\n\n\n\n Of course, Article 13 of the ICCPR applies expressly to aliens lawfully present in the territory of a State Party, and nothing in what follows assumes its direct application to undocumented migrants. The provision is instead relied upon here as evidence of how international human rights law conceptualizes expulsion as a paradigmatic exercise of public power subject to normative limits. Once a state undertakes removal of a lawfully present or undocumented person, it engages a form of coercive authority that international law treats as requiring legality, non-arbitrariness, and justification by legitimate public purposes. Article 13 is therefore invoked not to extend its procedural guarantees beyond their textual scope, but to illuminate the criteria by which expulsion is rendered lawful rather than extrajudicial under international human rights law.<\/p>\n\n\n\n With this proviso in mind, there is something of an ambiguity in what precisely is meant by \u2018in accordance with law\u2019. In <\/a>Aumeeruddy-Cziffra et al. v. Mauritius<\/em><\/a>, the Human Rights Committee held that \u201claw\u201d within the meaning of Article 13 implies procedural fairness, transparency, and the competence of the deciding authority. Extending these rights to documented and undocumented migrants alike, the committee has interpreted this clause to require not merely that a deportation be nominally lawful under domestic law, but that it occur through a clear, accessible, and reviewable legal process. As such, whenever these deportations occur without federal authorization or oversight, they violate U.S. obligations under international law.<\/p>\n\n\n\n The main issue, then, with medical deportations\u2014as Johnson rightly points out in her domestic treatment of the matter\u2014is that they occur with minimal judicial oversight<\/a>. The only relevant statute, the <\/a>Emergency Medical Treatment and Active Labor Act (EMTALA)<\/a>, specifies that all persons, documented or otherwise, in need of acute care are entitled to receive it. However, the act is entirely silent on cross-border transfers once care has been administered. All such deportations, occurring in the absence of substantive judicial oversight, are unlawful under international law. This continued reliance on a regulatory vacuum to enable medical deportations thus constitutes a breach of its duty to ensure legality.<\/p>\n\n\n\n B. Non-Arbitrariness<\/em><\/p>\n\n\n\n Still, even when formally lawful within a domestic context, deportation on these grounds may nonetheless be arbitrary under international law. The Human Rights Committee has consistently interpreted <\/a>Articles 9 and 13 of the ICCPR<\/a> to prohibit arbitrary expulsion that is unreasonable, disproportionate, or unjustified by a legitimate public purpose. The ICCPR is clear that \u201c[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.\u201d <\/a>General Comment No. 31<\/a> further clarifies that states bear responsibility for ensuring that all exercises of public power, including deportation, comply with the principles of reasonableness and necessity. Justifications that fall within these legal parameters sometimes include preserving national security or promoting any pressing social interest. Per the Supreme Court of Canada\u2019s ruling in <\/a>Stewart v. Canada<\/em><\/a>, such justifications cannot include economic incentives.<\/p>\n\n\n\n As mentioned, the widespread justification for these deportations remains \u2018cost saving\u2019<\/a>, where hospitals exercise discretion in who they allocate scarce resources to on the basis of economic efficiency. <\/a>Nancy Berlinger and Rajeev Raghavan<\/a>, for example, raise questions about the scope of \u201cresponsibility when the care of hospitalized undocumented patients becomes costly\u201d. They suggest that this is a legitimate ground for deportation, provided the deportation is handled in accordance with intuitive ethical standards for safe and effective transfer. Cost-saving, however rational it may appear in domestic policy, is not a recognized ground for expulsion under international law. Such removals pursue no legitimate aim recognized by international law: they are neither necessary to preserve national security nor proportionate to social interests usually included within the aims of domestic justice.<\/p>\n\n\n\n Medical deportations justified on this basis substantively fail to meet the reasonableness and necessity standards. By removing patients to avoid the cost of long-term care, states exercise coercion for administrative convenience rather than for public protection. Deportation motivated by economic utility alone is therefore arbitrary.<\/p>\n\n\n\n C. The Right to Health & Non-Refoulement <\/em> <\/p>\n\n\n\n Perhaps most recently, international law recognizes that deportation may violate not only procedural norms but also substantive rights, particularly the rights to health, life, and protection from inhuman treatment. <\/a>Article 12 of the International Covenant on Economic, Social and Cultural Rights<\/em><\/a> (ICESCR) guarantees everyone \u201cthe highest attainable standard of physical and mental health\u201d and has been similarly recognized in international agreements, including the <\/a>Universal Declaration of Human Rights (Article 25)<\/a>. Accordingly, deportations justified on arbitrary bases that violate this purported right are impermissible under these agreements.<\/p>\n\n\n\n Critics may argue that such a right does not necessarily eschew medical deportations, as this right could still, in principle, be realized in the patient\u2019s home country or through another global health initiative. Therefore, to fully understand this obligation, we need to clarify the extent to which states are obligated to realize the right to health for individuals. To this end, the <\/a>CESCR\u2019s General Comment 14<\/a> makes it clear:<\/p>\n\n\n\n “The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. [\u2026] The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.”<\/p>\n\n\n\n The final proviso here is clear that member states are indeed obligated to fulfil this right. For those who may think that this is too demanding, the treaty makes clear that there is nonetheless a requirement to respect or protect the right to the highest attainable standard of health. To that end, while the state may not be obliged to advance one’s health, it must, at the very least, refrain from interfering with one’s treatment.<\/p>\n\n\n\n To this end, these deportations violate the right to health. Medical deportations are unique in that they often have explicit health and well-being outcomes that are not so clear in other kinds of deportation. Physician <\/a>Ricardo Nulla<\/a> puts the point quite explicitly, noting that \u201c[f]or many undocumented immigrants, terminal illness is a revolving door: they are admitted from the emergency department with severe pain or organ failure, we stave off death well enough for them to be discharged, and very soon, they return\u2026 until the day they don\u2019t.\u201d Thus, it is not merely the positive right to health that medical deportations purportedly violate, and perhaps more importantly, the right against refoulement. Various courts have consistently upheld this reading of non-refoulement.<\/p>\n\n\n\n The European Court of Human Rights, in D. v. United Kingdom<\/a>, held that deporting a terminally ill man to a country where he lacked access to adequate medical treatment would violate Article 3 of the European Convention on Human Rights because it would expose him to inhuman and degrading treatment. In Paposhvili v. Belgium<\/a>, the Grand Chamber expanded this standard, ruling that removal is impermissible where substantial grounds exist for believing that the individual would face a real risk of a serious, rapid, and irreversible decline in health resulting in intense suffering or significant reduction in life expectancy due to the absence of appropriate treatment in the receiving state. The ECtHR reaffirmed this principle in Savran v. Denmark<\/a>, holding that states must rigorously assess the availability and accessibility of adequate treatment in the destination country before deporting a seriously ill individual, particularly where removal risks severe mental or physical deterioration.<\/p>\n\n\n\n As such, deportation that foreseeably results in the loss of life or dignity\u2014especially based on saving costs by not treating these persons\u2014is not an exercise of lawful power but a failure to meet obligations under international law for illegitimate reasons.<\/p>\n\n\n\n III. The Conditions for Legitimate Deportations<\/p>\n\n\n\n A. Deportation for National Security Threats<\/em><\/p>\n\n\n\n A lingering question, then, remains: when\u2014if ever\u2014is medical deportation consistent with international law? Critics may contend that the jurisprudential analysis presented in the previous section is too harsh and leaves virtually no room for sovereign states to expel undocumented patients. However, international law accepts that states may control the admission and removal of non-nationals.<\/p>\n\n\n\n International law permits deportations under specific conditions as detailed in the previous part. Article 13 of the ICCPR<\/a> balances state sovereignty and state obligations under international law: expulsion is permissible only when \u201cin accordance with law\u201d and for a legitimate public purpose, \u201cexcept where compelling reasons of national security otherwise require\u201d. While budgetary efficiency is not a legitimate ground for deportation under international law, national security may constitute a valid ground only if deportation satisfies the independent requirements of legality and necessity.<\/p>\n\n\n\n Still, this permission needs to take other constraints into account. <\/a>Article 4 of the ICCPR<\/a> permits derogation from certain obligations \u201conly to the extent strictly required by the exigencies of the situation\u201d and must do so in ways that reflect the principle of proportionality. Importantly, per <\/a>Articles 6 and 7 of the ICCPR<\/a>, boththe right to life and the prohibition of inhuman or degrading treatment are non-derogable. Thus, to deport a person, the state must show that medical deportation is strictly necessary to avert a concrete threat andthat no less-restrictive alternative exists. Since medical deportations can lead to serious health-related harms and engage Articles 4, 6, and 7, the state must ensure that the deportations do not violate those non-derogable rights.<\/p>\n\n\n\n A final important caveat is that, even if a patient poses a threat to national security, deportation may interrupt life-sustaining care. In such cases, the sending state must either guarantee equivalent treatment at the destination or postpone removal until the individual is medically stable. In <\/a>Paposhvili v. Belgium<\/em><\/a>, the ECtHR consistently supports that removal is prohibited where:<\/p>\n\n\n\n \u201cthe removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.\u201d<\/p>\n\n\n\n Pursuant to this ruling, deportations are impermissible or must be stayed in cases where a patient could not receive a comparable standard of care, which would result in the derogation of the right to life or the prohibition on inhuman or degrading treatment.<\/p>\n\n\n\n To this end, I should make it clear that the national-security criterion operates at the level of justification<\/em>. In the absence of a bona fide<\/em> threat to national security, deportation motivated solely by cost-saving or administrative convenience would be arbitrary and therefore unjustified. The availability of comparable treatment in the receiving country, by contrast, operates as a non-refoulement-based constraint<\/em> on particular instances of removal. Thus, even where deportation is otherwise justified (e.g., in cases involving national security threats), Articles 6 and 7 of the ICCPR prohibit removal where it would result in serious, rapid, and irreversible health decline or inhuman treatment. Removal may proceed only where adequate and comparable care is available in the receiving state. In such cases, deportation\u2014however justified\u2014must either be postponed or conditioned on guarantees of equivalent treatment. Accordingly, the standards are neither redundant nor contradictory: national security determines whether expulsion may be pursued in principle; non-refoulement determines whether and when it may be executed in a given case.<\/p>\n\n\n\n B. A Proposal for Reform<\/em><\/p>\n\n\n\n The goal then is to subject the deportation authority to international law. Congress should amend federal health and immigration legislation to clarify that medical repatriations constitute removals under immigration law and may occur only pursuant to a decision \u201cin accordance with law.\u201d Such requirements must be primarily consistent with Article 9 and 13 of the ICCPR for non-arbitrary grounds.<\/p>\n\n\n\n To effectively capture obligations under international law, a substantive amendment should do two basic things. First, removals must require federal authorization and oversight: no hospital or state authority may effect a cross-border transfer without prior approval from a designated federal body, such as the <\/a>Department of Homeland Security\u2019s Office for Civil Rights and Civil Liberties,<\/a> or a joint DHS\/Health & Human Services review panel. Second, Congress must codify a substantive limitation: removal on medical or economic grounds is impermissible unless the individual poses a genuine threat to national security and adequate care is demonstrably available at the destination of repatriation. Accordingly, this framework would require both DHS and HHS approval for all cross-border transfers and limit deportations to cases justified by legitimate aims, such as national security or public health, with guaranteed access to equivalent care abroad.<\/p>\n\n\n\n A remaining objection to this proposal merits serious consideration. One might argue that a framework limiting deportation to bona fide<\/em> national security threats, while requiring comparable treatment abroad before removal, risks creating perverse incentives. If undocumented individuals with severe medical conditions know that removal is impermissible where adequate care is unavailable in their home country, they may attempt to enter or remain in the U.S. to secure long-term treatment at public expense. On this view, the proposed framework could function as a de facto guarantee of indefinite care for those who cross the border unlawfully, thereby shifting significant financial burdens onto host-country taxpayers. Yet this concern, while not trivial, is ultimately somewhat overstated.<\/p>\n\n\n\n First, international law does not require states to provide optimal or indefinite care; it requires only that deportations not result in foreseeable violations of non-derogable rights: the obligation is negative and protective, not an open-ended entitlement to remain. Second, there is little empirical evidence that medical deportations occur at a scale suggesting strategic abuse. Indeed, the absence of comprehensive data\u2014stemming from the very lack of oversight this piece criticizes\u2014undermines the claim that such exploitation is widespread or systemic. Third and finally, the mere possibility of opportunistic migration cannot justify departures from binding international obligations. Sovereignty permits regulation of entry and removal, but it does not license expulsion in circumstances where removal would foreseeably result in serious harm. The appropriate response to fiscal concern is transparent legislative allocation of resources, not the circumvention of international law through ad hoc<\/em> repatriation.<\/p>\n\n\n\n IV. Conclusion<\/p>\n\n\n\n The deportation of undocumented patients illustrates an important tension between the sovereignty of states and the demands of international law. Properly understood, international law effectively calls for the end of medical deportation, especially where it is extrajudicial or based on saving costs in treatment. It is permitted only in the exceptional case where a patient constitutes a genuine threat to national security, though even these cases are constrained by non-derogation and the reception of similar treatment in one\u2019s home country. A federal statutory framework, grounded in international law, as proposed here, is essential to protect vulnerable migrants and ensure that the U.S. complies with international law.<\/p>\n\n\n\n *Radheesh Ameresekere is a philosopher at McGill University and Harvard University, and a Fellow-in-Residence in Constitutional Studies at the Yan P. Lin Centre for the Study of Freedom & Global Orders in the Ancient & Modern Worlds, where he works on legal and political philosophy. I am grateful to Brendan Abel, Danielle Pacia, Sarah Turnbull, and editors at the journal, especially Saak Saakian for his insights on the reform proposal, for their thoughtful feedback on previous versions of this paper. Any mistakes are my own.<\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Radheesh Ameresekere* I. Introduction In the U.S., hospitals regularly deport ill and undocumented migrant patients, largely to avoid the cost 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