Immigration Act 2014: what next for migrants’ access to NHS care?

The introduction of a new NHS charging system has been on the cards since the release of a joint public consultation on NHS charging in England by the Department of Health and the Home Office last year. The framework for some of these changes is now embedded in the Immigration Act 2014, which has put in place some of the necessary foundations for a new healthcare charging system.

Key changes in the Act

When its provisions enter into force, the Act will introduce two key changes in primary legislation:

Firstly, the Immigration Act will change the definition of ‘ordinarily resident’ for the purpose of accessing NHS services. Currently, entitlement to free NHS hospital treatment is based on ‘ordinary residence’ in the UK – broadly decided on whether an individual is living here on a lawful and properly settled basis. It does not include a minimum time period for residence. The Act redefines the ‘ordinarily resident’ test to exclude all migrants who do not have indefinite leave to remain in the UK. This introduces a much higher threshold for ‘ordinary residence’, as ILR can only be applied for after a minimum of 5 years residence in the UK. Temporary migrants who can currently access free NHS care in the UK as they are considered ‘ordinarily resident’, including students, workers and family members, will need in future to pay an additional charge, prior to entry, in order to cover any potential NHS costs further down the line.

We are concerned that the introduction of such a high threshold for migrants to access free care (although it may seem easier to explain to the public) will have an uneven impact across migrants whose circumstances often do not fall into neat categories. Healthcare providers will in future not need to consider individual circumstances when judging whether a patient is ‘ordinarily resident’ or not. This raises real concerns that migrants with complex immigration histories, and/or those who entered the UK prior to the introduction of the new rules, could be unfairly refused access to free healthcare, regardless of how long they have lived here. Steps must be taken to address these concerns.

Secondly, the Immigration Act now allows the Home Secretary to introduce a new charge for some migrants at the point of applying for a visa, prior to their entering the UK. We know from the Home Office consultation that the Government’s intention is for this to be paid by temporary migrants coming here for between six months and five years, including students, migrant workers and family migrants, among others. It is likely that the levy will be paid as part of the individual’s visa fee, in advance of their arrival in the UK, and will secure the same access to primary and secondary NHS services in the UK as someone considered to be ‘ordinarily resident’ during their stay here.

Changes in practice

So – the legal framework is in place, but what does this mean on the ground? As ever, the devil will be in the detail, and much remains unclear. Although the Immigration Act is now securely in place, the new changes will not come into force for some months while civil servants within the Department of Health work up the implementation plan. It is also unclear how the changes will impact across the four countries of the UK, as although access to healthcare is governed by devolved administrations, the provisions of the Act apply across the UK. We understand that the regulations on the implementation of the healthcare levy are still being drafted, and that details will be made public during this coming autumn.

Unfortunately, this means that it is also unlikely that we will get answers for a while yet about the further, arguably much more controversial, bits of the Government’s proposed reforms. The introduction of charging for certain primary care and A&E services for migrants who have been here for less than 6 months, as well as for irregular migrants, is apparently to take place in the next phases. Currently these services are free and provided at the point of need (and at the discretion of GPs in the case of primary care services).

But Government plans that, in England at least, new charges will be applied to some primary care services (including some GP services beyond initial consultations; dental, optical and pharmaceutical services for some migrants currently exempted; and some NHS care given in the community) as well as to some Accident and Emergency services.

Because such charges would be a new addition to the NHS, it is not yet clear how they would operate, or which groups of migrants would be chargeable in future. The Government has confirmed that refugees and asylum-seekers will be exempted, but it is not clear what the position will be for other groups like refused asylum-seekers, or irregular migrants in particularly vulnerable positions including those with mental health problems, pregnant women and children.

These questions are of real significance, because there are dire implications of a new charging system for such critical services. Aside from the logistical difficulties of implementation, and the potentially discriminatory impacts of the regime, there will be real individual and public health consequences. For many irregular migrants, paying for care will be impossible, so the danger is that groups with serious health needs simply won’t access the help they need.

Also problematic is the Government’s scoping out of ‘better data flows’ between the DoH and the Home Office, potentially allowing the Home Office to access information on the immigration status of NHS patients. This would be a disaster. It is hard to think of a more effective way to deter irregular migrants – already reluctant to seek treatment from mainstream services – from crossing the threshold of a GP surgery or hospital. The result will be to deepen the vulnerability to chronic health problems of any migrants with doubts about their immigration status, with widespread public health implications across our communities.

Over the past few months various healthcare and migrant rights groups, including MRN, have been in touch with the Department of Health on all these issues, in an effort to inform the development of the regulations. The Department of Health was due to release an ‘implementation plan’ for all changes in March this year, but that deadline has now passed. We gather, instead, that an update will be issued in June, which will make clear how the Government plans to tighten up the existing charging system. This will apparently be followed by announcements in the Autumn on the healthcare levy and in the Spring for further developments on GP and A&E charging.

In the meantime, migrant advocates need to keep a close watch on all developments and be ready to argue where possible for fair and responsible policy-making so that the NHS does not become a site for enforcement against, rather than treatment of, those who need care.

Migrants Rights Network

This article was first published by the  Migrants’ Rights Network