Background to the campaign

At the core of the National Health Service, is the provision of healthcare that “meets the need of everyone, is free at the point of delivery and that it is based on clinical need and not the ability to pay”.

The regulations

Regulations introduced in 2004 limited the free access to NHS hospital services for overseas visitors including undocumented migrants and refused asylum seekers. The latter group includes those unable to safely travel home and claiming National Asylum Support Service assistance under Section 4 of the Immigration and Asylum Act 1999; those legitimately appealing the failure of their asylum claim under the European Convention on Human Rights; and those waiting to be removed.

Some exemptions

Important exemptions from the charging regulations include treatment started whilst an asylum claim was being processed, urgent and immediately necessary care in accident and emergency departments and the treatment for various communicable diseases that might pose a public health risk if not dealt with. HIV/AIDS testing and counselling is also exempt but treatment is only available to those who can pay. Antenatal care, including the drugs needed to prevent mother-to-child-transmission of HIV, is also chargeable. Hospital treatment of pregnant HIV/AIDS patients does qualify as “immediately necessary” and this treatment must be given without delay, irrespective of whether the patient is, or may be, chargeable. If the patient who received this treatment, however, is found to be a chargeable overseas visitor Department of Health guidance stipulates that “the patient should be advised of this as soon as is practically possible, and appropriate recovery action should be taken” to recover costs.

Destitution

Under the current regulations NHS trusts are under the legal obligation to establish the residency status of those to whom they provide services. In practice this is done by trusts’ overseas visitors managers who work with the trust finance departments and with external debt recovery agencies. In its guidance the Department of Health “strongly advises the use of a debt recovery agency that is experienced in handling overseas debt” and it requires trusts to “take all reasonable measures” to recover the debts incurred with the only acceptable reason for not seeking payment being death: “where the patient has subsequently died, the Trust can decide to write the debt off”.

Not entitled to a legal source of income and largely denied benefits, the vast majority of asylum seekers and undocumented migrants are destitute, and as such, charging them for NHS hospital care effectively prevents access to any secondary healthcare. The Secretary of State for Health may grant treatment to an individual on humanitarian grounds but these decisions are discretionary.

High court judgement

Following the introduction of Statutory Instrument 614 in 2004 a high court judgement in April 2008 ruled that all refused asylum seekers granted temporary admission should be considered ‘ordinarily resident’ in the UK, and as such should not be charged for hospital treatment. People who are completely undocumented remained chargeable. In 2009, the Court of Appeal overturned the High Court judgement requiring more than ‘temporary admission’ to be ordinarily resident in the UK although the ruling did state that current Department of Health guidance was unlawful since it did not specify what hospitals should do if patient cannot pay and cannot return home for the time being. Initially there were plans to appeal the April 2009 judgement. These were abandoned. Now the emphasis will be on ensuring the revised guidance is as helpful as possible.

Primary care

Under the current regulations general practitioners are allowed to register and refuse patients at their discretion, regardless of their immigration status, so long as they do not discriminate in doing so. In summer 2004, the Department of Health consulted on proposals that would extend the current charging regulations to primary care. Unlike every other Department of Health consultation published that year, the department published no response and it is unclear whether these proposals will be implemented.

Human rights

The current regulations are in breach of a number of international human rights agreements, in particular article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which states health is a fundamental human right. The Covenant puts states under the specific obligation “to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” including “the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

In General Comment 14 related to Article 12 the ICESCR explicitly states that “States are under the obligation to respect the right to health by [...] refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services”.

Harm

No health or race equality impact assessments were carried out before introducing the 2004 charging regulations in secondary care or with regard to the current discretionary arrangements for GP registration. The Joint Council for the Welfare of Immigrants (JCWI) told the Joint Committee on Human Rights (JCHR) that a race equality impact assessment was particularly important given the nationalities of people who are being refused or charged for treatment, and stated that ‘there are race implications which have to be tackled by the Department for Health’.

Healthcare professionals lack the skills needed to accurately determine immigration status. Identifying those eligible for treatment is difficult and may result in discrimination or exacerbation of existing discrimination, even against those who are entitled to care. Case studies show that, since NHS regulations were amended in 2004, both those currently not entitled to care as well as those entitled to care, but with limited understanding or ability to communicate their rights, have come to harm, and in their tenth report, The Treatment of Asylum Seekers, the JCHR report that “the 2004 Charging Regulations have caused confusion about entitlement, that interpretation of them appears to be inconsistent and that in some cases people who are entitled to free treatment have been charged in error. The threat of incurring high charges has resulted in some people with life-threatening illnesses or disturbing mental health conditions being denied, or failing to seek, treatment. We have heard of many extremely shocking examples”.

Enforcing the rules

The declared purpose of the introduction of charging for hospital care was to crack down on health tourism for which there is no evidence in the UK, a point which has been conceded by the Department of Health. A Home Office publication in 2007 revealed a more sinister intention: “to ensure that living illegally in the UK becomes ever more uncomfortable and constrained until they leave or are removed”. This policy of 'forced destitution as a means of encouraging people to leave voluntarily' was called a 'failed policy' by the Chairman of the Centre for Social Justice, Iain Duncan Smith. Above all, it seems inappropriate that access to healthcare, as such, appears to be used as an immigration tool.

Linking health and immigration services

Any perceived link between the health service and the immigration service will tend to discourage engagement with health care services and will act as a barrier to accessing care. MSF studied the experiences of refused asylum seekers and undocumented migrants in Sweden where legislation only allows for the free provision of ‘immediate health care’. MSF Sweden assessed the key barriers to health care refused asylum seekers and undocumented migrants face. The majority of individuals studied reported facing barriers to health care including high costs for medical consultations and medication; refusal of care due to lack of valid documents; and most importantly a fear of being reported to the police when accessing health care services and being sent back to their home country when approaching services. Migrants in the UK have cited facing barriers to accessing health services including difficulties communicating, social exclusion, and financial deprivation as factors that limit access to primary care, resulting in more use of emergency services, for which there is currently no charge. The barrier the current charging regulations in secondary pose compound existing ones.

What we're doing at the moment

  • We are writing a submission to the Department of Health consultation on the Review of access to the NHS by foreign nationals.
  • We have worked closely with the other members of the Entitlement Working Group to generate a set of model responses to make it as easy for everyone to respond to the consultation. These model responses have made maximal use of the pool of specialist and expert knowledge that members of the EWG have in relation to specific issues.
  • With Medact we have also produced a video resource for those wanting to respond to the Department of Health consultation which is available here.
  • We are trying to encourage as many people as possible respond to the consultation which closes on 30 June 2010. All the members of the Entitlement Working Group are contacting organisations and are encouraging individuals to respond. We would be grateful if you could encourage as many people to do the same and to use resources like the website to take action!

Last updated on Tuesday 01 June 2010 at 15:10.