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

The passing of the Immigration Act earlier this month has put in place the legal framework for a new NHS charging regime for migrants in the UK. We look at what this means and, in particular, the implications for vulnerable migrants.

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.

NHS Ambulance
New restrictions on the horizon (Photo: Flickr)

Key changes in the Act

When its provisons 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.

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Some excellent points being made in this article. I would have much preferred it if the new provisions of the Act regarding access to NHS had been applied before my husband enters on a spouse visa this weekend! Had he been charged a levy at the time of application, it would have given us much more peace of mind than we currently have when we have no idea how the new requirements will impact us when they are enforced. I do hope indeed that every aspect is looked at carefully. It is ironic that for tax purposes we will be "ordinarily resident", (though, in actual fact I understand that HMRC no longer uses that term) but for access to NHS, my husband will not be considered "ordinarily resident" for another five years!

Do we know where the money this generates will go? I'm also curious if anyone has calculated how much they expect this will generate. Is that a major force driving this Act's implementation? I don't like the idea that there are so many many students who come in every year for one year and leave, maybe never seeing a doctor, and they'll pay an up front fee regardless of that. Those many students coming in surely will generate a large amount of money. Also, for migrants on 3 year visas, will they need to pay every year?

I am pleased to see action being taken by Government to ensure the NHS is sustainable for the future of its people. I view the new rules as being fair, setting out what the expectations are for those people opting to enter the UK as students, employees or otherwise. The cost to the NHS cannot be sustained unless some amendments to entitlement is addressed.

This comment, I know is unlikely to to be popular, however it enables migrants to take the necessary consideration about their decision to enter the UK before actually doing so. There is always the option of obtaining a health insurance to cover for the event of ill health. The original policy of healthcare being 'free at the point if delivery' has already been diluted, namely charging for residential and nursing home care which targets a highly vulnerable group in our society, so why not these new amendments?

Urgh, i can understand the reasoning and agree to a certain extent with the idea behind this but once again the implementation stinks of cash grab rather than an actual way to defend the NHS.
Students and short term migrants will be paying an up front charge for a service they probably wont use? Pure profit then. Why not use a deposit system? Or require health insurance and bill the insurance company like many other countries require?

All this happens whilst those who are here on a permanent legal basis before getting ILTR (spouses for example) are essentially going to be punished twice, once by the tax man on their earnings and then for the NHS...

Thanks for these comments all. 

Anonymous [1] - Officially there should be transitional arrangements in place for those who are already here when the rules come into force. What is less clear is how this will pan out in practice when people try to access healthcare.

Anonumous [2] - The Government has put together a very general cost/benefit analysis which you can find here. But since the details of the policy are so up in the air it's impossible to put a reliable figure on this yet. You're right that people will have to pay for every year of their visa - that will be an upfront charge prior to entry, but I'd presume there's no reimbursement if they leave the country prematurely.

Anonymous [3] and max - I agree that the issue of migrant healthcare access in the UK throws up all sorts of tricky questions, and that it's perfectly legitimate to look at where improvements can be made. But my view is that there is already a charging regime in place for secondary care, which is very patchily implemented by hospitals, and considerable sums which aren't recouped from EU governments. Improving this should surely be the priority. In particular I don't think it makes sense to introduce another charging regime which could result in some people not getting any access to care whatsoever - that's not in anyone's interests.

Max - anything this government does is anti foreigner . they are just thieves in smart suits as you imply - it is a money making racket in same way as the high visa fees are ! Even a visitor visa costs far more than a schengen visa and so sad the "little engander" mentality kept us out of the schengen countries . We are ruled by d***heads with only about 2% of Chinese tourists visiting the UK when they have a European holiday as they can not face the 9 page questionnaire and all the other hassle to get a UK visa . How unlucky we are to be British and not born in another EU country .

as a non-EEA pregnant wife of a British citizen, im already worried how it is going to affect me...if we're going to have a second baby in the next 5 years. we may not be able to afford a 'private' birth.

I think government took correct decision but it's too late. I think government need to take some strict action against misuse of immigration laws and also benefits. We'll done Mr. Cameron.

Maria, I completely support your concern.

Anonymous 3 - I don't think you have quite considered the impact to migrants and the varied circumstances of each migrant. I am Australian. Married to a Bristish citizen. I originally lived here for 4 years, and then went home to Australia with my now husband to visit my family for a few years. We came back 1 year ago, and were married in Feb.

This means I am not eligible for ILR until 2018.

I think many people assume that once you marry a British person you are automatically entitled to a passport or ILR. Let me point out very clearly this is not the case!

We found out recently we are going to struggle to get a mortgage in this country as I don't have ILR. We would like to start trying for a baby in the next few months and now are faced with this!

I am very career oriented, I work very hard and have always paid substantial taxes in this country. I do believe in such circumstances as my husbands and mine that we are unfairly punished. So will this mean that if we have a child in the next 4 years that we will have to pay a substantial amount - despite the fact that that baby will be half British - all because I am from outside the EEA?

It makes you reconsider living here! And I think this law might unknowingly target the wrong people!

What about the thousands of EU migrants that come hear every year. Those who have never payed into the system at all, why should they get free care?

What is very interesting is the regulatory requirements. For a citizen, with the right of abode, going to the UK on a ancestrally gained UK Passport.
Is there unfettered access to the NHS?
Does it require a National Insurance Number?
Can a National Insurance Number be obtained from outside the UK?
All very pertinent.