Response to the Consultation Paper on
Sustaining services, Ensuring Fairness
A consultation on migrant access and their financial contribution to the NHS provision in England
(Issued by the Department of Health July 2013)
INTRODUCTION
Joint Council for the Welfare of Immigrants (JCWI) is an independent national charity that provides direct legal assistance to immigrants, and campaigns for a human rights based approach to the formulation of asylum, immigration and nationality law. JCWI has been doing this work since 1967.
JCWI actively lobbies and campaigns for changes in law and practice and its mission is to eliminate discrimination in this sphere. JCWI has been instrumental in influencing debates on immigration and asylum issues in both the UK and at European level.
JCWI’s membership consists of many black and ethnic community organisations and individuals that represent people who will be affected by the proposed changes. In responding to this consultation JCWI has been taking the views of these organisations and will continue to do so during the consultative process.
Sustaining services, ensuring fairness
A consultation on migrant access and their financial contribution to NHS provision in England
Overarching principles
Question 1: Are there any other principles you think we should take into consideration?Response:
There are some welcome inclusions in the list of overarching principles, but other very important guiding principles have not been stated. These include:
· Human rights including the right to life, health and a family life.
· Ethical obligations on doctors to provide care to people who are in need, including the Hippocratic Oath.
· Public health and the role of the NHS in improving the health of populations and preventing people from becoming ill (including testing and treating infectious diseases and providing immunisation programmes).
· Existing services standards and guidelines (e.g. NICE guidance) which must not be undermined by restrictions on healthcare access.
Question 2: Do you have any evidence of how our proposals may impact disproportionately on any of the protected characteristic groups[1]?
Response:
There is already extensive evidence that current charging policies have a disproportionate impact on vulnerable groups, including destitute, appeal rights exhausted asylum seekers, victims of trafficking and other undocumented migrants who have no resource to public funds, and this will only increase as further barriers are created to healthcare access.
Under the Health and Social Care Act 2012 the Secretary of State, NHS England and Clinical Commissioning Groups have a responsibility to reduce inequalities by improving the health outcomes of marginalised and vulnerable groups . The proposals will not have this impact – instead these inequalities are likely to be increased.
Under Human Rights legislation there is a basic duty to provide healthcare albeit not free of charge. The Universal Declaration of Human Rights in article 25 states that everyone has the right to a standard of living adequate for health and well- being. The International Covenant on Economic, Social and Cultural Rights, which the UK has ratified says in Article 12 that everyone has the right to healthcare. Further Article 12.2 requires states to take specific steps to improve the health of their citizens, including reducing infant mortality and improving child health, improving environmental and workplace health, preventing, controlling and treating epidemic diseases, and creating conditions to ensure equal and timely access to medical services for all. Vulnerable groups who are prevented from obtaining medical care because the charges are prohibitive do not and cannot enjoy this basic freedom, they do not have equal access. Thus, the UK Government needs to be very careful in pursuing a policy that focuses on making it difficult for undocumented migrants, most of whom are part of very vulnerable groups, from accessing healthcare.
Specific impacts on protected groups will include:
Black and minority ethnic people and people from specific nationalities – As these proposals target non-EEA nationals, BME people and some nationality groups are much more likely to be expected to pay for their healthcare access. In addition, BME people who are EEA nationals are more likely than their white counterparts to have their entitlement questioned by those administering the system.
Disabled people – As the proposals will require a new group of migrants to directly contribute to the costs of their healthcare, those who are living with a pre-existing disability of health condition are clearly going to be more affected. The proposals to require non-EEA migrants who have paid the levy to make an additional contribution for specific services could easily lead to discrimination against people with disabilities requiring specialist and expensive treatment.
Maternity – The consultation specifically targets maternity services for additional charges, even when non-EEA migrants have paid the levy. The proposal to charge for maternity services for ‘pre-existing’ pregnancies is unworkable and discriminatory.
Women – Women are more likely to be living in the UK as dependents of a male migrant. It is unclear from the consultation document how their entitlement to healthcare will be protected in the case of domestic abuse and/or family breakdown. Women are less likely than men to have accumulated seven years of NI contributions during the same period of residence in the UK as women are more likely than men to take breaks from work to care for children and others.
Age (children) - As dependents, children will also be vulnerable to losing their healthcare entitlement following domestic abuse and/or family breakdown. Children also have a range of age-specific health needs which are met by primary care (the Healthy Child Programme). They are also particularly affected by infectious diseases. Children of migrants who are born in the UK will also experience follow-on effects from any restriction on maternity services, which are vital to their healthy start in life.
Who should be charged?
Question 3: Do you have any views on how to improve the ordinary residence qualification?Response:
The current understanding of ‘ordinary residence’ has developed overtime through case law and is understood as:
“living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as ‘settled’.”
Caselaw has also established that short term visitors (less than 6 months entry), illegal migrants and those with temporary admission do not meet the ordinary residence test and are not entitled to free NHS secondary care. Therefore, the current ordinary residence test already filters out those who are not settled here.
As the consultation itself states the “NHS exists because at its heart, is an agreement that taxpayers will pay for a comprehensive health service that is free at the point of delivery to all those who live here and are committed to our society.”
Ordinary residents by their very definition are ‘settled’ in this country and are part of British society contributing to the economy and therefore to the NHS and should be entitled to free access to the NHS.
Only allowing those who have ILR (which the proposed change to the ordinary residence test) to access free NHS services unfairly discriminates against those who have made the UK their home and are settled here, work here, pay taxes and contributions (income tax, national insurance contributions, VAT) a significant percentage of which will go towards the NHS and yet are not entitled to access it without further cost.
The Home Office confirms that the main categories of temporary migrants who meet the current ordinary residence test are students, workers and dependent family members. The case for including workers and their families is obvious in terms of their tax contribution. In the case of students, foreign students pays hefty fees to universities and colleges for the privilege of studying here and this provides the exchequer with significant revenue. They also contribute to the economy by their expenditure on goods and services, rent/mortgages and payment of council tax.
The ordinary resident definition avoids linking eligibility to specific immigration or residency status (categories which are subject to regular change by the Home Office) and it avoids the risk of unintentionally excluding certain groups which by any reasonable measure should expect healthcare entitlement for example, people granted humanitarian protection.
JCWI does not agree that the ordinary residence test needs to be amended as proposed in the consultation.
Question 4: Should access to free NHS services for non-EEA migrants be based on whether they have permanent residence in the UK?
(Yes / No / Don’t know)
Response:
No.
Please see our response above, in addition linking NHS entitlement to permanent residence does not reflect either the commitment or contribution of the migrants who will be affected by these proposals. Although most immigration routes leading to settlement should render migrants eligible for permanent residence after five years, additional requirements to apply for ILR (such as the Life in the UK Test or the minimum income requirement for partners) means that in practice many migrants take much longer to acquire permanent residence. There will be migrants who have lived in the UK for many years and contributed greatly, without having qualified for NHS access.
This is another area where victims of domestic abuse may be particularly vulnerable, if their route to permanent residence (and therefore NHS access) is reliant on their sponsorship by an abusive partner or family member.
Question 5: Do you agree with the principle of exempting those with a long term relationship with the UK (evidenced by National Insurance contributions)? How long should this have been for? Are there any relevant circumstances under which this simple rule will lead to the unfair exclusion of any groups?
Response:
The principle of exempting those with a long-term relationship from the UK from charges is a sound one, but the proposals for evidencing this relationship are highly flawed.
Some people will have been long-term residents of the UK without having paid the required 7 years NI contributions, for reasons including disability and caring responsibilities. To base entitlement on NI contributions is therefore not only unnecessary but likely to discriminate against some groups. This is a concerning precedent for NHS access, which if extended to the resident population would undermine the current purpose and function of the NHS, redefining it as a contribution-based health system.
It will also be very difficult to implement this rule in practice, as administrators will have to distinguish between ‘expatriates’ who are permanent residents of another country, from those who have been living abroad for a long period and are now taking up permanent residency in the UK (which would entitle them to free treatment).
Question 6: Do you support the principle that all temporary non-EEA migrants, and any dependants who accompany them, should make a direct contribution to the costs of their healthcare?
Response:
No.
Migrants who come to live in the UK for an extended period of time (more than six months) already contribute to the NHS through their regular taxation (VAT, income tax and National Insurance Contributions). They also contribute to revenue through their visa fees prior to entering the UK.
Question 7: Which would make the most effective means of ensuring temporary migrants make a financial contribution to the health service?
a) A health levy paid as part of the entry clearance process
b) Health insurance (for NHS treatment)
c) Other – do you have any other proposals on how the costs of their healthcare could be covered?
Response:
c)
The consultation documentation does not provide sufficient evidence to indicate that a greater financial contribution from resident non-EEA migrants is needed. There is no data on how many short term migrants access the NHS and at what cost. Most people who enter the country for studies or work are relatively young and healthy and in the 18-40 age bracket where they least likely to require medical care.
It is also clear that the current ‘hospital charges’ regime for non- residents is not being implemented and enforced. There is no clear data on how much this group is costing the NHS. In addition, the 2012 Review of overseas visitors charging policy, makes clear the majority of migrants currently affected by NHS charges are people living in the UK without the required immigration clearance or documentation. This includes refused asylum seekers and visa overstayers. Thus, trying to introduce a new system which penalises new migrants to the UK will not necessarily serve to raise revenue for the NHS as it will cost to implement and run, it will not target the main group of users who do not pay ‘undocumented migrants’ and will make the UK seem less attractive to workers, students and visitors to the
Many undocumented migrants will do some form of work but only very few would be able to afford to pay the charges for healthcare they access. In reality, the charging regime means that they are likely to avoid accessing healthcare until they are seriously ill. This has impact for their health, increasing the likelihood of need to access more costly treatment in future (which they have a right to access but the charges for which they will not be able to pay). In the case of communicable disease, this will also have a major impact on the health of the community
A better initial focus would be on recouping costs from other EEA nations, for the treatment of their citizens, as this is a far more straight-forward matter of implementation that does not require a change in law and the NHS is entitled to this money. Secondly, it would be prudent to establish systems within hospitals where the existing legal framework for charging visitors actually works.
If the NHS actually implements the provisions that exist there would be no need for further changes that could discriminate against hard working migrants who have been contributing for up to 5 years or more to the British economy. It would also prevent ‘putting off’ future students, visitors and of course workers from coming to the UK.
Trying to implement further processes, such as the levy, and at the same time changing the residency test thus increasing the numbers of people who be affected will only create more work, cost and confusion without any confirmation that it will raise significant revenue for the NHS.