Refused asylum seekers and access to free secondary healthcare: a comparison of England, Scotland, Wales & Northern Ireland

The National Health Service was created to provide health services free at the point of need.[1] Throughout the UK, entitlement to free NHS secondary care services is based on ordinary residence. Those who are not ordinarily resident, such as overseas visitors, may still receive treatment but are charged. Indeed, regulations place a legal obligation on NHS bodies to identify patients who are not ordinarily resident and to recover charges. Not all overseas visitors are charged for services as some exemptions apply.

This paper compares the legislation and policies of England, Scotland, Wales and Northern Ireland in relation to refused asylum seekers. The focus of this paper is secondary healthcare and it incorporates a previous Law Centre information briefing.[2]

England

The 1989 Regulations[3]  introduced a number of exemption categories under the heading ‘Overseas visitors exempt from charges’. Two categories are relevant for asylum seekers as exemptions apply to any person who:

-       Has resided in the UK for 12 months immediately preceding the time when services were provided (4b)

-       Has been accepted as a refugee or who has made a formal application for leave to stay as a refugee (4c)

However, subsequent regulations issued in 2004 introduced further conditions requiring that:

-       The 12 months’ residency must be “lawful residence”; and

-       Section 4c only applies to those asylum seekers whose applications for asylum have “not yet been determined”.

The effect of these regulations was that refused asylum seekers could no longer be considered to be exempt overseas visitors. This was confirmed in the Court of Appeal case of YA.[4] YA was a refused Palestinian asylum seeker living in England who was suffering from chronic liver disease. He sought hospital treatment, however, the hospital decided that he was not eligible for free medical treatment but was instead liable to pay for his care. Destitute and unable to meet the hospital charges, YA was discharged from hospital. YA challenged the hospital’s decision to refuse him treatment.

The case was ultimately heard by the Court of Appeal which ruled that refused asylum seekers cannot be said to be ‘ordinarily resident’. Furthermore, the Court held that most refused asylum seekers cannot satisfy the ‘lawful residence’ requirement. The Court did rule, however, that an NHS Trust has discretion to provide a refused asylum seeker free of charge. Furthermore, the Court declared the Department of Health Guidance unlawful due to its lack of clarity.[5]

Further regulations were issued this year and came into force on 1 August 2011.[6] These regulations and associated guidance reflect the YA judgment and make it clear that only the following categories of asylum seekers are considered to be overseas visitors exempt from charges:

-       Persons granted temporary protection, asylum or humanitarian protection; or

-       Persons who have made an application which has not yet been determined; or

-       Persons supported under s.4 or s.95 of Immigration and Asylum Act; or

-       A child taken into local authority care under the Children Act

The regulations also include an ‘easement clause’ whereby treatment already underway when an asylum seeker’s application is rejected or when a refused asylum seeker stops receiving NASS support, will continue free of change until that treatment concludes or the person leaves the country.

The guidance also confirms that NHS bodies must ensure that immediately necessary treatment is provided to any patient irrespective of whether the patient has agreed to pay charges. Immediately necessary treatment includes all maternity services.[7]

If charges are applicable (including for immediately necessary or urgent treatment), the NHS bodies have an obligation to recover them. Charges cannot be waived for any reasons.[8] However the NHS can decide to write off a debt in certain circumstances.

Scotland

The 1989 regulations were also brought into force in Scotland. As above, these regulations exempt asylum seekers from charges. The exemption applies to all persons who have lodged an asylum application, whether or not the application is pending, refused or under appeal.

Unlike in England, the 1989 Scottish Regulations were not subject to the same amendments. Specifically, Scotland never introduced an equivalent to the English 2004 Regulations which includes the not yet been determined criteria for asylum claims. However, practitioners were concerned that the English restrictions might be applied in Scotland and therefore called for guidance to provide clarification.

In February 2008, the Scottish Government issued guidance confirming that:

For all practical purposes… failed asylum seekers who have previously been resident in Scotland who remain in Scotland will remain in the care of the NHS in Scotland until arrangements for their return home can be made.[9]

The Scottish Refugee Council (among other NGOs) were concerned that there was still some scope for ambiguity within this guidance. In April 2010, the guidance was updated and brought welcome clarity. [10] The guidance confirms that:

Anyone who has made a formal application for asylum, whether pending or unsuccessful, is entitled to treatment on the same basis as a UK national who is ordinarily resident in Scotland while they remain in the country.[11]

In explanatory paragraphs, the guidance also clarifies that “… the spouse/civil partner and any dependent children of anyone exempt under the above criteria are also exempt”.[12]

Wales

The position is different again in Wales.

The same 2004 amendments regulations brought into force in England were also applied in Wales, thus introducing the not yet been determined criteria into Welsh legislation. Therefore, Welsh legislation clearly prevented refused asylum seekers from receiving free secondary care.

However, in 2007, a coalition of organisations lobbied the Welsh Assembly to sign up to A Refugees and Asylum Seekers Manifesto,[13] which included a commitment to give asylum seekers whose claims have been refused exemption from charges for treatment by NHS Trusts. As a result of this successful lobbying, the Minister for Health and Social Services agreed that refused asylum seekers should not pay for health service treatment, partly with the health interests of the settled population in mind.

Accordingly, Wales issued new Regulations in 2009 which deleted the not yet been determined criteria.[14] The effect of this amendment is that any person in Wales who has claimed asylum (regardless of the outcome) falls within the overseas exemption category and therefore cannot be charged for treatment.

Northern Ireland

In Northern Ireland, the general duty to provide health services is contained in the Health and Social Care (Reform) Act (Northern Ireland) 2009.[15] This duty has been delegated to the Health and Social Care Trusts by DHSSPS.

Eligibility to access free health services in Northern Ireland is governed by the Provision of Health Services to Persons Not ‘Ordinarily resident’ Regulations (NI) 2005,[16]  which include the not yet determined criteria. These regulations confirm that health services are available to those who:

-       Are ordinarily resident (3a)

-       Have resided lawfully for 12 months (3c)

-       Have a pending asylum application (3d)

A refused asylum seeker who has exhausted all appeal rights clearly does not have a pending asylum application. She will not therefore be entitled to healthcare unless she can argue that she is either ‘ordinarily resident’ or ‘lawfully resident’ in Northern Ireland.

Application of YA in Northern Ireland

The YA judgment does not apply to Wales and Scotland. This is because a refused asylum seeker in Wales or Scotland does not have to demonstrate that she is ordinarily or lawfully resident in order to access free healthcare. Instead her eligibility stems from the fact that Welsh and Scottish legislation exempt all asylum seekers from charges. The question remains: is the YA judgement applicable in Northern Ireland?

It is important to note that part of the court’s reasoning in YA’s case was that the National Health Service Act 2006 places a duty on the Secretary of State to promote a health service designed to secure improvement in the health ‘of the people of England’.[17] The judge took the view that the Act’s reference to the ‘people of England’ rather than the ‘people in England’ was instructive. Specifically, this wording ‘strongly suggests that the benefits [of the NHS] were not intended by Parliament to be bestowed on those who ought not to be here’.[18] It followed that because refused asylum seekers cannot demonstrate a ‘legitimate connection’ to England, they cannot be said to be people of England. This reasoning shaped the court’s conclusion that asylum seekers cannot be considered to be ordinarily resident.

By comparison, Northern Ireland legislation is distinctly different. Crucially, the Health and Social Care Act 2009 is concerned with the promotion of an integrated system of healthcare designed to secure improvement in the physical and mental health of ‘people in Northern Ireland’.  It would therefore be open for a refused asylum seeker living in Northern Ireland to argue that the YA judgement is not applicable here and that she is ordinarily resident (and therefore eligible for free healthcare).

On the face of the legislation, a refused asylum seeker is not entitled to free secondary healthcare in Northern Ireland unless she can show that she is ordinarily or lawfully resident. This has not been tested before the courts.

DHSSPS 2011 policy proposal and refused asylum seekers

The Department’s policy proposal would bring Northern Ireland in line with England in terms of access to secondary healthcare for refused asylum seekers. In fact, the DHSSPS proposals might place asylum seekers in a comparatively worse position than in England. This is because DHSSPS proposes to restrict entitlement to asylum seekers in receipt of NASS support where there is a barrier to immediate return. This is more restrictive than the England position which just requires asylum seekers to be in receipt of NASS support and does not specify the reason for NASS support being granted.

In its response to the DHSSPS policy proposals, the Law Centre urged the Department to rethink its approach on access for refused asylum seekers.  Legislation in force in Scotland and Wales provides for free healthcare for asylum seekers until they leave the jurisdiction, regardless of the status of the asylum application. The Law Centre argued that such an approach is both pragmatic and humanitarian and also makes sense on public health grounds.

The Law Centre noted that Northern Ireland’s secondary legislation is very similar to the legislation in force in Wales until 2009 when a simple amendment inserted into the regulations ensured continued access to free healthcare for asylum seekers. This serves as a useful ‘tried and tested’ model for reform.

If the Department were to adopt a similar legislative amendment in Northern Ireland it would create absolute clarity and avoid the possibility of a legal challenge against primary legislation.