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Any restriction in access to healthcare will undermine efforts to control the COVID-19 pandemic.

Medical groups as well as human rights and migrant rights groups have written to the Home Secretary and the Secretary of State for Health and Social Care asking them to suspend the National Health Service (Charges to Overseas Visitors) Regulations 2015 and 2017 and all associated immigration checks and data sharing.

Just Fair as signatory to this letter wholly supports these calls that are inline with the UK’s human rights obligations.

Right to Health

The UK has set an example by subscribing to a number of human rights treaties that protect the right to health. In particular, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by the UK in 1976.

As a Party to this treaty, the United Kingdom must guarantee that the right to health is exercised without discrimination of any kind. Furthermore, UK statutes must be interpreted by UK courts in a manner consistent with its international obligations.

The UN Committee on Economic, Social and Cultural Rights (CESCR), which monitors States’ compliance with the ICESCR, has been clear: The rights contained in the ICESCR “apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation”.

The principle of non-discrimination is essential for the accessibility of the right to health, and healthcare services must be affordable for all, especially most disadvantaged groups. Ensuring the access to health facilities on a non-discriminatory basis is a minimum core obligation derived from international human rights law. In other words, it is an obligation that must be immediately and fully secured for everyone.

Migrants are particularly vulnerable to the impact of COVID-19 due to their overrepresentation in the homeless population, and limited access to the welfare support system, as well as to the health care system. Additionally there may be linguistic barriers for some people that can increase their risk as they will be unable to access adequate information or support services.

NHS Charging

Everyone should be able to access the healthcare system without having a risk of legal or financial consequences to seeking care. This not yet the case in the UK.

GP and nurse consultations in primary care, treatment provided by a GP and other primary care services are free of charge to all. However for secondary care the NHS charging policy that is currently in place requires that the NHS charges non-EU patients 50% more than the cost of treating a patient on , and it also requires that the hospital establish whether a patient is liable to be charged or not.

This policy is part of a series of immigration restrictions that were brought in as part of the “hostile environment”.

In response to the pandemic there will be no charges made for testing and treatment of COVID-19 regardless of a person’s immigration status, and the NHS has been advised that no immigration checks are required for patients solely undergoing treatment for COVID-19.

However if a patient is liable then they will have to pay for any care that is unrelated to the treatment for COVID-19 and is not exempt from charge. If a person tests negative for COVID-19 but still require treatment, they will be charged for any care provided after the negative test result.

In order to establish whether a person has a legal right to access health care is complicated as no single document can confirm or deny whether an individual is entitled to healthcare. More importantly, unless the verification is done systematically for every individual entering into a public hospital, it is hard to imagine how a nationality test could be carried out without incurring in some sort of profiling based on the physical appearance of an individual.

Data sharing

Health professionals will not usually share personal medical information even when requested by other government agencies.

However, the NHS can seek information from the Home Office to establish a persons immigration status and the NHS must share with the Home Office non-clinical information about an individual who has medical debts of more than £500 that have been outstanding for over two months.

This medical debt can impact upon an individuals future immigration application

The UN Special Rapporteur on the Right to Health found in a study that “Policies linking access to health systems with immigration control discriminate against irregular migrants.

CESCR concluded that “Strict walls should exist between healthcare personnel and law enforcement authorities” because the opposite may frighten undocumented migrants away from seeking medical healthcare when they need it.

Public Health England found that “Any barriers, actual or perceived, to patients accessing healthcare can have serious consequences. In particular this may impact upon asylum seekers, refugees and undocumented migrants or migrant groups legally in the UK who may be distrustful of sharing personal information for fear that it could be accessed by migration enforcement to locate them or their friends and family.”

Next steps

In order to adequately respond to COVID-19 everyone should have unrestricted access to healthcare so that no one unnecessarily delays or avoids treatment. As the Fundamental Rights Agency director Michael O’Flaherty put it, “The more we respect human rights, the better will be our public health strategies.”

Migration law and policy must be in line with human rights as proclaimed in international law. Under international human rights law, which is binding for the UK, undocumented migrants are entitled to economic and social rights, and this includes the right to health.

Public authorities are not allowed to discriminate against migrants because of

their nationality or their immigration status. They must also have due regard to the cumulative and intersectional effects that their policies, actions and inactions, have on equality and human rights.

Suspending NHS charging regulations and the associated immigration checks and data sharing is a sensible and highly necessary first step in tackling COVID-19.  

In order to fully protect all migrants the Joint Council for the Welfare of Immigrants have put together a list of key asks including suspending the No Recourse to Public Funds condition and support to those in asylum seeker accommodation.