Access to NHS care for migrants and visitors will change as a result of the Immigration Act 2014. MPS senior medicolegal adviser Dr Bryony Hooper outlines the current position and likely changes.
The passage of the Immigration Act 2014 through parliament has focused concern on its implications for access to NHS care. Although proposals to charge some groups of patients for consultations in primary care have been dropped, the Act and associated department of health proposals will lead to changes in eligibility of visitors and migrants for aspects of both primary and secondary NHS care.
Calls to the MPS helpline, and the experience of charities such as Doctors of the World,1 demonstrate that there is considerable confusion and misinformation about the current rules and guidance regarding migrant or overseas visitor access to NHS care. This is not surprising, given the complexity of the current guidance and the media coverage relating to varying political agendas. This article aims to set out the current position to assist healthcare professionals and NHS staff in complying with the current legislation and guidance, and looks at the forthcoming changes.
Many people are surprised to discover that there is currently no legislation or statutory guidance that restricts access to primary care. Therefore, while visitors, asylum-seekers and refugees are entitled to free primary care, so are irregular entrants, undocumented migrants and failed asylumseekers. GPs do of course have discretion when registering patients, most commonly used in relation to catchment areas.
Any restriction on registering patients needs to avoid discrimination on the grounds of race, religion, age, sex, sexuality or disability. Checking the immigration status of people asking to register who seem likely to be migrants puts the practice at risk of criticism, as it is likely to be viewed as discriminatory, and immigration status should not be a relevant factor when registering a patient for primary care services.
If a patient is likely to be in the area for between 24 hours and three months, then the practice may register the patient on a temporary basis. However, patients who do not know how long they will stay in the area can also be registered normally with the practice.
"Many people are surprised to discover that there is currently no legislation or statutory guidance that restricts access to primary care"
What is a ‘vulnerable migrant’?
The phrase “vulnerable migrants” refers to asylum-seekers and refugees (who have been given leave to remain in the UK), but also includes unaccompanied children, victims of trafficking, undocumented migrants, and low paid migrant workers.2 Many vulnerable migrants do not have the usual documentation asked for by practices prior to registering, such as a passport (which may have been retained by the Home Office, or an agent used to get the person into the UK, or lost while leaving their country) or a bank statement or utility bill as proof of address. Whilst there are no fixed rules in this area, BMA guidance recommends that “practices use their discretion and consider the individual circumstances of prospective patients when asking for identification.”3
Whilst asylum-seekers assisted by UK Visas and Immigration (UKVI, previously known as the UKBA) are issued with a certificate to entitle them to free prescriptions, sight tests and dental care, other vulnerable migrants can complete an HC1 form4and obtain free prescriptions if they fall within the low income entitlement.
Access to secondary care
The situation regarding access to secondary care is more complicated and varies between England, Wales, Scotland and Ireland. In England, those who are considered to be ‘ordinarily resident’ are able to access all secondary care free of charge.5 In addition, asylum-seekers, victims of trafficking, EEA nationals and those from countries with bilateral healthcare agreements with the UK, and those on a work or student visa, are entitled to free secondary care.
Those who do not fall into these categories, such as undocumented migrants, are able to access some secondary services under the NHS. Treatment for some communicable diseases, such as TB and measles, is free to everyone. This is also true for sexually transmitted infections, including HIV, and for family planning services. Currently emergency services are available to all patients irrespective of residency status. In addition, treatment under the Mental Health Act is free for everyone.
Those not entitled to the wider aspects of secondary care can still receive treatment prior to payment if the treatment is urgent, or immediately necessary to save a life or prevent a condition from becoming immediately lifethreatening.6 In these circumstances hospitals are obliged to provide the treatment whether or not any payment has been made before the treatment is commenced, although they can charge the patient for the treatment provided. The decision regarding the urgency of treatment should be taken by a clinician.
Depending on the NHS trust, some overseas visitor managers may use discretion to waive charges for patients with no income or recourse to public funds, when there is no realistic prospect of ever recouping the costs incurred by the treatment.
GPs currently have no role in determining whether a patient is eligible for secondary care under the NHS, and patients should be referred for further investigation or treatment on the basis of clinical need. However, it may be appropriate in some circumstances for GPs to warn patients if it is likely that the referral could lead to charges.
Impact of recent legislation and proposals
The Immigration Act was passed in May 2014 and introduces two major changes regarding healthcare. Firstly, only those non-EEA nationals who have ‘indefinite leave to remain’ status will be entitled to free NHS secondary care. As this phrase refers to an immigration status only open to those who have resided in the UK for more than five years, this change will exclude many people who previously would have been entitled as being ‘ordinarily resident’ in the UK.
Secondly, non-EEA nationals coming to the UK for a period of longer than six months will be required to pay an ‘immigration health surcharge’ with their visa application fee. This is likely to be in the region of £150 for students and £200 for all others, and will entitle applicants to free NHS primary and secondary care. Secondary legislation is awaited to give further detail of how these changes will be implemented.
In addition to the changes brought in by the Immigration Act, the Department of Health has published its own proposals for increasing NHS income from charging overseas visitors and migrants. The ‘Visitor and Migrant NHS Cost Recovery Programme’7 was published in July 2014 and sets out the government proposals for tightening existing charging mechanisms in secondary care, incorporating administrative systems to meet the requirements of the new health surcharge, and introducing new charges for A&E services and aspects of primary care.
"non-EEA nationals coming to the UK for a period of longer than six months will be required to pay an 'immigration health surcharge'"
Proposed charges for primary care relate to prescriptions, optical services and dental care, as well as some other community services. At present there are no proposals to charge any patient for doctor or nurse consultations in primary care.
A further new proposal includes charging for access to emergency services. This is currently being explored further through the DH proposals, to provide more explicit proposals for how this may be implemented.
Ensuring patients are not denied access inappropriately
With so much change it is almost inevitable that some misunderstandings and errors will occur, and it is vital to avoid denying access to care for those entitled to it. It is important to remember that asylum-seekers, victims of trafficking, EEA nationals and those from countries with bilateral healthcare agreements with the UK will retain their current entitlement to free secondary care. Those who have paid the health surcharge will also be entitled to free care, but a mechanism will be required to check whether this charge has been paid.
Those who fall outside these categories, such as undocumented migrants, are currently able to access some secondary NHS services free of charge. Treatment for some communicable diseases, such as TB and measles, is and will remain free to everyone. This is also true for sexually transmitted infections, including HIV, for family planning services and for treatment under the Mental Health Act. Access to immediately necessary treatment, or urgent care, should also continue to be provided even if the patient is not entitled to free care and has no means to pay the charges. Neither the Immigration Act nor the DH proposals alter this position.
It is a time of change that will introduce significant challenges for those providing care to migrants and visitors to the UK. While proposals are finalised by government it is vital that providers are well-informed about the current position to ensure that those entitled to healthcare continue to receive it.
www.doctorsoftheworld.org.uk - A charity that supports vulnerable migrants to access NHS and other services.
Health Protection Agency, Migrant Health Guide.
BMA, Access to health care for asylum seekers and refused asylum seekers – guidance for doctors (Nov 2012)
Further information available at www.nhs.uk/NHSEngland/Healthcosts/Pages/nhs-low-income-scheme.aspx
The National Health Service (Charges to Overseas Visitors) Regulations 2011
Department of Health, Implementing the Overseas Visitors Hospital Charging Regulations (May 2012)
Download a PDF of this edition
« Medical Innovation Bill
The Story of Beth Bowen »