Policing immigration through the NHS

September 5, 2013 — News

Written by Frances Webber

Below we reproduce a submission to a current government consultation by Frances Webber, a retired immigration barrister.

Response to consultation document ‘Controlling immigration – regulating migrant access to health services in the UK’.

  1. I am responding as a recently retired barrister specialising since the early 1980s in immigration casework. I do not believe that a case has been made for changing the current arrangements, and I have concerns about the fairness of the proposed changes, their compatibility with international human rights obligations and their impact on the health of vulnerable people, on public health, and on the efficient functioning and founding principles of the NHS.
  2. ‘Health tourists’ I am concerned at the emphasis on ‘abuse’ of health services, and at the lack of evidence, apart from the nebulous ‘anecdotal evidence’ referred to at para 5.4, for the existence of ‘health tourists’ who deliberately target the UK to obtain free treatment (para 1.5). There is little evidence to justify these far-reaching proposals, apart from the statistic that somewhere between £21 million and £33 million in chargeable NHS invoices remains unpaid (para 1.16). (It is not clear to what period these figures relate.) If, as the consultation paper indicates, an audit is currently being undertaken to determine the scale of the problem, it would seem more sensible to wait for the results of that audit before taking any further action. It would also be sensible to undertake an assessment of the additional administration costs required to incorporate primary health care into the charging system.
  3. Fairness: migrants are taxpayers too The current arrangements allow those ordinarily resident in the UK to access free primary and secondary health care, excluding visitors but including other temporary migrants – workers, students and family members on probationary visas. The rationale for the proposal to restrict eligibility to free NHS health care to permanent residents is that ‘the taxpayer’ should not have to pay for the health care costs of those who do not contribute.
  4. This formulation assumes that temporary migrants are not taxpayers. Since most temporary migrants pay tax, the proposed remedy creates a great deal more unfairness than it purports to address. Temporary migrants with work visas are taxpayers, paying tax and national insurance immediately they start work. Students at university level, who are eligible to work part-time, will also pay tax and national insurance (as will many of those without current leave to remain). As for family migration, UK-based sponsors will be taxpayers, and the newly arrived family members will become taxpayers as soon as they enter employment. These groups are already ineligible for welfare benefits. It is unfair to them to make them pay twice for NHS treatment, through taxes and through a levy or health insurance.
  5. Compatibility with international law Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which the UK has signed and ratified, protects ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, through (inter alia) ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’.[1] The core of the obligation is non-discrimination in access to health care.
  6. The denial of non-emergency hospital treatment to undocumented migrants and refused asylum seekers under the current charging regime was criticised by the UN Committee on Economic, Social and Cultural Rights (CESCR) in its 2009 periodic report.[2] This led to exemptions from charges for certain groups of refused asylum seekers, but those deemed uncooperative, and other undocumented migrants, are still subject to charges for hospital treatment. Doctors for Human Rights pointed out in a letter to the then health secretary[3] that the charging regime effectively excluded marginalised and vulnerable people from access to healthcare, and violated the obligations assumed by the UK under the ICESCR.
  7. In its concluding observations, the CESC recommended that the government ‘intensify its efforts to overcome the health inequalities and unequal access to health care, in particular for the most disadvantaged and marginalized individuals and groups’. Insofar as the proposals seek to deny primary health care to groups based on their immigration status, they appear to further violate the UK’s international obligations of non-discrimination in access to the highest attainable standard of health.
  8. Impact on vulnerable people Evidence from a number of organisations, including the Refugee Council and Oxfam [4] has described the impact of denial of free hospital care on people whose health has already been compromised by dispersal and living in poverty in asylum housing for lengthy periods. Denial of primary care will dramatically exacerbate this situation, since the GP is the first port of call.
  9. A charging regime for GP care will inevitably cause deaths among these most vulnerable groups as serious conditions go untreated.
  10. Impact on public health Although the proposals would exempt certain conditions such as tuberculosis from the charging regime on public health grounds, they do not say how such diagnoses will be made. It is hard to see how prima facie ineligible migrants, in particular the refused asylum seekers and the undocumented migrants, who might be suffering from tuberculosis, will be persuaded to come forward for diagnosis or treatment, or how doctors will be persuaded to see them, in order to make such a diagnosis.
  11. Similarly, although sexually transmitted diseases will attract exemption, those affected are unlikely to be aware of their eligibility for free treatment, since primary care will be unavailable, and it is generally through the doctors’ surgery that more specialist services are accessed. The public health implications of removing eligibility to GP care from undocumented migrants and most refused asylum seekers are worrying.
  12. Impact on functioning and ethos of NHS Government policy to relieve pressure on overstretched accident and emergency departments of hospitals is likely to be undermined by these proposals. Those unable to afford primary or non-emergency secondary health care are bound to end up in emergency departments, as untreated conditions lead to life-threatening complications, or just because it is the only place a worried parent can take a sick child. The unintended effects on hospitals’ functioning are likely to be severe.
  13. The ethos of the NHS is one of treatment which is free at the point of need, in recognition of the principle of essential health services as a universal human right. While there has been some modification of this ethos in the current charging regime, generally the principle survives, at least in relation to primary health care through GPs’ surgeries. However, this ethos would be severely, possibly fatally, eroded by the incorporation of GPs into a charging regime.

RELATED LINKS

Download a copy of ‘Controlling immigration – regulating migrant access to health services in the UK’, here.

Read a submission by Frances Webber to the consultation ‘Tackling illegal immigration in privately rented accommodation’, here.

References: [1] ICESCR Art. 12(2)(d). [2] Concluding Observations on the UK, June 2009, E/C.12/GBR/CO/5. [3] Letter to Rt Hon Alan Johnson MP, 10 September 2007, on Doctors for Human Rights website. [4] First do no harm: denying healthcare to people whose asylum claims have failed, Refugee Council and Oxfam, June 2006.

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

Comments

September 6, 2013
Sally Ramage:

One might add the following texts in support of this submission:
The Universal Declaration of Human Rights states at 25(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services…

The American Declaration of the Rights and Duties of Man states at xi that ‘every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.

The International Covenant on Economic, Social and Political Rights states at 12 that
‘(1) The state parties to the present covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
(2) The steps to be taken by State Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for:
(a) the provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child;
(b) the improvement of all aspects of environment and industrial hygiene;
(c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) the creation of conditions which would assure to all -medical service and medical attention in the event of sickness.

THE EUROPEAN SOCIAL CHARTER stated that
1 (11) Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable.
II, 111. With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties, either directly or in cooperation with public or private organisations, to undertake appropriate measures designed inter alia:
(1) to remove as far as possible the causes of ill-health;
(2) to provide advisory education…in the matters of health;
(3)to prevent, as far as possible epidemic,endemic endemic and other diseases.
16 (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.
(2) State Parties to the present Charter shall take necessary measures to protect the health of their people and to ensure they receive medical attention when they are sick.

December 30, 2013
Victor:

This article makes a very good point: If there is a policy to be set up to stop Migrants using free NHS service, it should be based on who is paying National Insurance or not, since after all, that’s what National Insurance is designed to cover, isn’t it? People who is already paying NI should not be asked to pay twice some kind of Levy..

Write a comment