Today we’ve got our Lancet digest and of course the Lancet Student podcast, which this week includes Erica Pool and Jonny Currie from Medsin talking about meeting the Undersecretary of State for DFID yesterday to present the water and sanitation petition. We’ve also posted a great report by Cynthia Santos, who has written for us before on working in patient advocacy for cancer care, on an emergency medicine elective in the US. Moving onto the topic of today’s blog, which is to do with access to healthcare for failed asylum seekers-a long-running issue in the UK. There was a High Court Appeal earlier this week by the Department of Health contesting Mr Justice Mitting’s ruling back in April that failed asylum seekers are entitled to free NHS care (though see below for the caveats). As this was a public hearing, the Lancet Student interns were able to attend and there’s a bit more below on the background, the current situation and what went on. There is no indication at the moment about when the Lord Justices’ decision will be made but we’ll keep you posted on that.

   

IMPORTANT NOTE: This blog has been corrected and updated on 22/11

Access to free, comprehensive healthcare for asylum seekers and refused asylum seekers is an extremely important and emotive issue in the UK at the moment. This blog is going to focus on Department of Health/NHS guidelines and the recent legal challenges but it’s worth mentioning that ensuring people get full access to the services they are entitled too (and that GP surgeries, trusts and hospitals all behave consistently over this) is a problematic area in itself.

In recent years the UK government has moved to restrict free access to many NHS services for refused asylum seekers (current asylum seekers are exempt from fees) and charge them as “overseas visitors”, refusing treatment if they are not able to pay (which is often the case). This is largely based on worries of “medical tourism”, with people coming to Britain hoping to use free NHS services at a substantial cost to the public purse. However, there is no evidence at all that this is a widespread phenomenon and a very strong case can be made for access for other reasons, including the fact that everyone is entitled to the highest attainable standard of health (under article 25 of the Universal Declaration of Human Rights), doctors should not be made into immigration officials and denying access does not make good public health sense anyway (see these editorials in the BMJ and the Lancet for good overall summaries). The policy also completely fails to recognise the realities of the immigration system, whereby asylum seekers are rarely removed from the country as soon as their claim and appeal have been refused. Indeed the court heard earlier this week an example of an Iraqi Kurd who stayed in the UK for six years after his appeal was turned down under various exceptional leave extensions because there were no flights to his region of origin, due to safety issues, and so the Home Office was unable to remove him from the country. To expect people in this situation, where they are not even given government benefits to live on, to pay for treatment which they may desperately need is entirely unreasonable.

A court case was brought against the Department of Health on the 10/11^th of April 2008, contesting the legality of their guidelines saying that failed asylum seekers should be charged for most secondary (hospital) healthcare. Unusually, Mr Justice Mittings gave his verdict on the same day that the guidelines were indeed unlawful, based on the fact that failed asylum seekers should mostly be (i.e. some but not all depending on the situation) considered “ordinarily resident” in the UK and so entitled to free NHS treatment (based strongly on the definition of ordinary residence arising from Shah v Barnet LBC in 1982). The Department of Health issued a letter to NHS hospital trusts changing their policy on this basis. The definition of someone who is “ordinarily resident” is that they have been living lawfully in the UK (which both current and refused asylum seekers do under temporary admission) and can demonstrate a “settled purpose”. This is obviously very vague, and so each person is considered on a case-by-case basis. Mr Justice Mitting suggested that if someone remained in the UK once their asylum claim had been refused, unable to legally work and receiving no state support, this should be seen as demonstrating commitment to a life in the UK. Thus most refused asylum seekers should be considered ordinarily resident until they are served with a removal order (this happens immediately before someone is removed from the country).

The Department of Health brought an appeal to the High Court which was heard before three Lord Justices on Monday and Tuesday of this week. In brief, the QC for the Department of Health sought to contest that refused asylum seekers can be ordinarily resident by saying that not doing anything wrong by being in the UK (i.e. being on temporary admission) is not the same as being lawfully here (i.e. you need positive permission) and that moreover, asylum seekers fleeing from their country of origin, subject to restrictions of liberty and once failed about to be deported at any moment, cannot be said to have a “settled purpose”. Thus neither current nor refused asylum seekers can be said to be ordinarily resident (but the former are expressly exempt from NHS charges). The other QC countered by arguing that asylum seekers can be considered ordinarily resident after a period that distinguishes them from “overseas visitors” and that this is not lost once their appeal fails, indeed it cannot be lost until the person leaves the country, voluntarily or otherwise.

Undocumented migrants, another vulnerable migrant population, were unaffected by the April court ruling and are still not entitled to access many NHS hospital services.

These are very fine scale legal wranglings, but the outcome of this case will have huge implications for Department of Health and NHS policy towards refused asylum seekers, with subsequent knock-on effects to the health of the real people at the centre of this issue.

For more information, see these medical organisations campaigning for/working with asylum seekers:

Medact and this briefing in particular
Medical Justice
Project London (Medecins du Monde)
Medsin (defend primary healthcare campaign)

And see the British Medical Associations’s stance

This entry was posted on Friday, November 21st, 2008 at 8:04 pm and is filed under Blog. You can follow any responses to this entry through the RSS 2.0 feed. You can trackback from your own site.