Controlling immigration Regulating Migrant Access to Health Services in the UK

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1 Office of the Children s Commissioner s response to the Home Office consultation: Controlling immigration Regulating Migrant Access to Health Services in the UK August 2013

2 Office of the Children s Commissioner The Office of the Children s Commissioner (OCC) is a national organisation led by the Children s Commissioner for England, Dr Maggie Atkinson. The post of Children s Commissioner for England was established by the Children Act The United Nations Convention on the Rights of the Child (UNCRC) underpins and frames all of our work. The Children s Commissioner has a duty to promote the views and interests of all children in England, in particular those whose voices are least likely to be heard, to the people who make decisions about their lives. She also has a duty to speak on behalf of all children in the UK on non-devolved issues which include immigration, for the whole of the UK, and youth justice, for England and Wales. One of the Children s Commissioner s key functions is encouraging organisations that provide services for children always to operate from the child s perspective. Under the Children Act 2004 the Children s Commissioner is required both to publish what she finds from talking and listening to children and young people, and to draw national policymakers and agencies attention to the particular circumstances of a child or small group of children which should inform both policy and practice. The Office of the Children s Commissioner has a statutory duty to highlight where we believe vulnerable children are not being treated appropriately in accordance with duties established under international and domestic legislation. Our vision A society where children and young people s rights are realised, where their views shape decisions made about their lives and they respect the rights of others. Our mission We will promote and protect the rights of children in England. We will do this by involving children and young people in our work and ensuring their voices are heard. We will use our statutory powers to undertake inquiries, and our position to engage, advise and influence those making decisions that affect children and young people. August

3 The United Nations Convention on the Rights of the Child The UK Government ratified the United Nations Convention on the Rights of the Child (UNCRC) in This is the most widely ratified international human rights treaty, setting out what all children and young people need to be happy and healthy. While the Convention is not incorporated into national law, it still has the status of a binding international treaty. By agreeing to the UNCRC the Government has committed itself to promoting and protecting children s rights by all means available to it. The legislation governing the operation of the Office of the Children s Commissioner requires us to have regard to the Convention in all our activities. Following an independent review of our office in 2010 we are working to promote and protect children s rights in the spirit of the recommendations made in the Dunford report and accepted by the Secretary of State. In relation to the current consultation, the articles of the Convention which are most relevant to this area of policy are: Article 24: The right to the highest attainable standard of health In conjunction with Article 4 - implementation of Convention rights and; Article 2 non-discrimination on any grounds. The response below has therefore been drafted with these articles in mind. We do not propose to respond separately to every consultation question. Rather, we will respond where we feel the UNCRC gives us a locus to do so, and where our existing evidence base gives us a perspective. Throughout, we use the same section headings as in the consultation document. 1 You can view the full text of the United Nations Convention on the Rights of the Child on the Office of the United Nations High Commissioner for Human Rights website at: A summary version, produced by UNICEF, is available at: August

4 Response from the Office of the Children s Commissioner Introduction The Office of the Children s Commissioner frames its response to this consultation by reference to the UK s binding obligations under the United Nations Convention on the Rights of the Child (UNCRC) and other human rights instruments to which the State is a party. 2 The UNCRC provides a right for children who are within the jurisdiction of the State Party to the highest attainable standard of health (Article 24). This refers to both what is attainable for each child and according to the progressive realisation of the State s resources. Within Article 24 there is specific provision for both treatment of illness and for rehabilitation following illness (Article 24(1)). 3 This right is drafted so as to place a positive obligation on the State Party. The need to achieve the highest attainable standard of health for the child is emphasised by the fact that the right contained in Article 24 (1) must be fully implemented pursuant to Article 4 of the UNCRC. 4 Article 24(1) together with the principle of non-discrimination in Article 2 (1) 5 of the UNCRC requires the State Party to eradicate any differentials in the standard of health and availability of facilities as between different children. 6 Article 2 prohibits any discrimination in access to healthcare including in respect of means and entitlements for their procurement on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origins, property birth, physical or mental disability, health status (including HIV /AIDS), sexual orientation, and civil, political, social or other status which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health. 7 2 Of particular relevance here is the Covenant on Economic, Social and Cultural Rights, Article 12 (1). 3 Article 24 (1): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 4 Article 4: States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. 5 Article 2 (1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 6 Committee on Economic, Social and Cultural Rights General Comment No 14 The Right to the Highest Attainable Standard of Health (Art 12) HRI/GEN/1/Rev.8, para Newell, P and Hodgkin, R Implementation Handbook for the Convention on the Rights of the Child (2008) August

5 Article 24 places emphasis on primary healthcare for children and is therefore highly pertinent to this consultation. As a minimum, primary healthcare for children should include: 8.essential health care based on practical, scientifically sound and socially acceptable methods and technology made universally accessible to individuals and families in the community through their full participation at a cost that the community and country can afford to maintain at every stage of their development in the spirit of self-reliance and self-determination.[to include] at least education concerning prevailing health problems and the methods of preventing and controlling them; promotion of food supply and proper nutrition; an adequate supply of safe water and basic sanitation; maternal and child health care, including family planning; immunisation against any major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs. (Emphasis added) It is against the framework of the right to health contained in the UNCRC that we now consider the consultation questions. 3 rd edn, UNICEF, p Declaration of Alma-Ata (1978) principle VI and VII. August

6 1. Should all temporary migrants, and any dependants who accompany them, make a direct contribution to the costs of their healthcare? (Yes / No / Don t know) The term temporary migrants appear to be defined in the context of this consultation as visitors with more than six months permission to be in the UK. 9 A distinction is made between temporary migrants, short-term visitors and illegal migrants. 10 Our response to this question is therefore restricted to the category of temporary migrants as defined in the consultation. The Office of the Children s Commissioner does not take a view on the principle of whether the Government should require a contribution towards the costs of healthcare from temporary migrants applying to come to the UK. Children of temporary migrants who are applying to come to the UK are not yet within the scope of the State Parties responsibilities under the UNCRC. We note that temporary migrants may or may not use health services during their leave period and therefore a health levy charged at the point of application would appear to discriminate against the healthy. This would only be justified if there were a mechanism for returning the levy when the migrant returned home at the end of their leave period and if they had not used health services during their stay. Providing a mechanism whereby migrants could be repaid the levy in the absence of any use of NHS services during their period of leave would make the system expensive and cumbersome to administer. In respect of any dependants who accompany them we incline to the view that child dependants should be exempt from any charging regime. This would be consistent with the position of children who are permanent residents in the UK who by virtue of their minority are not expected to contribute directly to their healthcare costs. 2. Should access to free NHS services for non-eea migrants be based on whether they have permanent residence in the UK? (Yes / No / Don t know) No. The Office of the Children s Commissioner does not agree with this proposal. The term non-eea migrants in this question would appear to cover the following as defined in the consultation: illegal migrants, short-term visitors and temporary migrants. Unlike question 1, question 2 appears to relate to migrants including migrant children - who are already in the UK. Such children fall within the scope of the State Parties duties to all children irrespective of status - under the UNCRC. The question pre-supposes an administrative system where ultimately everyone including permanent residents would have to demonstrate that they were entitled to access NHS 9 Home Office, 3 rd July 2013 Controlling Immigration Regulating Migrant Access to Health Services in the UK para The use of the term illegal migrant in this response is solely to reference a group of migrants referred to in this way in the consultation itself and does not imply our acceptance of a term that we regard as highly pejorative. Where possible we have used the term irregular migrant to refer to this group. August

7 healthcare. Such a system would be extraordinarily complex to administer, may place an unacceptable burden on NHS staff in terms of gatekeeping access to services and would risk excluding those who are either unable to pay or who have an irregular status and fear detection from accessing healthcare. We reiterate the point that no child should be treated any differently from any other child in respect of access to healthcare in line with the State Parties duties under the UNCRC as outlined in the introduction to this response. The positive duty under Article 24(1) of the UNCRC `to ensure that no child is deprived of his or her right of access to such health care services means that even exempting children from having to prove eligibility for NHS healthcare would be insufficient to secure rights under Article 24 if their parent s irregular status meant that they were not prepared to risk registering for primary care. 3. What would be the most effective means of ensuring temporary migrants make a financial contribution to public health services? a) A health levy paid as part of the entry clearance process b) Health insurance c) Other option (please detail your proposals) The term temporary migrants appear to be defined in the context of this consultation as visitors with more than six months permission to be in the UK. 11 A distinction is made between temporary migrants, short-term visitors and illegal migrants. Our response to this question is therefore restricted to the category of temporary migrants as defined in the consultation. If the Government is determined to ensure that temporary migrants contribute to any health services they may use during their period of leave, it would be fairer to require such migrants to take out health insurance as part of the application process rather than to charge a blanket levy for services that may or may not be used. 4. If a health levy were established, at what level should it be set? a) 200 per year b) 500 per year c) Other amount (please specify) We do not agree that a health levy should be set. If one is set, the levy should not be applied to children. 11 Home Office, 3 rd July 2013 Controlling Immigration Regulating Migrant Access to Health Services in the UK para 1.8. August

8 5. Should some or all categories of migrant be granted the flexibility to opt out of paying a migrant health levy, for example where they hold medical insurance for privately provided healthcare? (Yes, some categories / Yes, all categories / No / Don t know) Those who are able to obtain private health insurance should be exempted from having to pay a levy. If a levy is to be introduced then there should be an alternative for anyone choosing to obtain private health insurance to cover their period of leave. Children should be exempt from any charging regime. If you responded with Yes, some categories, please specify If the Government wishes to ensure that all migrants from outside the EEA who are not permanent residents are able to access healthcare while in the UK then the health insurance option should be available to them irrespective of which category of migrant they are. 6. Should a migrant health levy be set at a fixed level for all temporary migrants, or varied (for example according to the age of the migrant)? a) Fixed level b) Varied level c) Don t know We do not agree that a health levy should be set. If one is set, the levy should not be applied to children. 7. Should temporary migrants already in the UK be required to pay a health levy as part of any application to extend their leave? (Yes / No / Don t know) No for the following reasons: Such a requirement would bear on a migrant s ability to make a successful application to extend their leave as they may not have the financial resources to do so. It is not hard to envisage gross unfairness resulting from such an approach. If a temporary migrant has paid a health levy at the time of their original application and has not used the health service at the time they apply to extend their leave an additional health levy charge would be particularly objectionable since they have already paid for a service they have not used. The issue of returning the health levy to any unsuccessful applicant for further leave would need to be addressed as it would be grossly unfair to charge a person 200, 500 or other amount and retain this if the application to extend leave were then refused. Any system of returning the levy to unsuccessful applicants in the event of an unsuccessful application would be costly and resource heavy to administer. August

9 Children and young people who are temporary migrants should not be required to pay a health levy when applying to extend their leave. For example unaccompanied children with UASC leave (Discretionary Leave granted on the basis of an asylum applicant being a child but where the threshold for Refugee Status or Humanitarian Protection is not met) who are in the care of a local authority and who apply to extend their leave should be exempt. If they are not, the costs would fall on the already overburdened local authority. We reiterate the point that all children should be exempt from any health levy that is imposed either as part of the original application or as part of an application to extend leave. 8. Are there any categories of migrant that you believe should be exempt from paying the health levy or other methods of charging (over and above those already exempt on humanitarian grounds or as a result of our international obligations)? (Yes / No / Don t know). If yes, please specify All children irrespective of migration status should be exempt from paying a health levy in order for the Government to meet its obligations under the UNCRC. The consultation is not as clear as it could be on what categories of migrant might remain exempt from the health levy or other method of charging. The nearest we get to a comprehensive definition of whom might be exempted from charging is at paragraph 3.10: As now, the new test would be subject to exemptions for certain categories of migrant, where they relate to our humanitarian obligations and responsibilities under international agreements, these include those who have been granted refugee status under the Immigration Rules, those seeking asylum, temporary protection or humanitarian protection under those same rules, failed asylum seekers receiving section 4 or section 95 support, children in Local Authority care, victims (and suspected victims) of human trafficking in the UK. This brief exposition of the categories to be exempted is not comprehensive and would require extensive and detailed guidance to those administering the exemption system. Examples of children who may not be covered under the exemptions above might be: A child found working in a cannabis factory. Such a child may need immediate healthcare on detection but in the absence of any previous contact with the authorities is unlikely to have been referred for a decision on their trafficked status Children refused entry at the border who fall ill pending their removal Children of irregular migrants who may not even know that they have an irregular status Young people over the age of 18 who have previously been looked after by a local authority and remain supported under the leaving care provisions of the Children Act 1989 Migrant children in youth detention or immigration detention. August

10 These brief examples indicate the extent to which guidance will be necessary to administer such a system. We are not convinced that any benefits in terms of savings to the health service would not be outweighed by the costs of administering a system that requires such complex gatekeeping and regular updating to ensure that the migrant s status has not changed. 9. Should any requirement to hold health insurance be a mandatory condition of entry to the UK (as determined by the Home Office)? (Yes / No / Don t know) No if entry is being used in the legal sense as established in the Immigration Act 1971 rather than as shorthand for physical entry to the territory. In particular there should be no mandatory requirement for those escaping persecution or who have been trafficked to the UK for exploitation. Such persons are normally granted entry following a period of temporary admission or temporary release during which their application for protection is considered (leading to permission to enter for successful applicants). To make health insurance mandatory for applicants in such categories before granting asylum or subsidiary protection would undermine the purpose of the grant of leave to enter in the first place. 10. Should chargeable migrants pay for all healthcare services, including primary medical care provided by GPs? (Yes / No / Don t know) No. Children should be exempt from any charging regime. The idea of charging for all primary medical care services is of particular concern. There are a range of primary healthcare services that exist for children or to promote the health of their mothers for example, maternity services, health visiting, community midwifery, immunisations. If these were chargeable there is a serious risk that for either of reasons of cost or of fear of having personal details passed from healthcare to the Home Office that children would not be registered and would therefore miss out on vital health protection including routine childhood immunisations. Were significant numbers to opt for non-registration there is of course a significant public health risk. The proposal to retain existing exemptions for a number of specific public health services is insufficient to address the issue of the potential threat to public health. It seems an obvious point that diagnosis of such conditions only occurs once the subject has already accessed primary health services and has been seen by a health professional. Migrants with such conditions are unlikely to self-diagnose prior to being seen by a health professional meaning that these conditions will go untreated and will present a public health threat. August

11 For more information contact: Adrian Matthews Principal Policy Adviser, Asylum & Immigration Office of the Children s Commissioner Tel: August

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