By Rachel Benchekroun and Rachel Humphris
Creating a hostile environment has been an explicit aim of the government’s immigration policy since 2012. This is the second in a series of blogposts examining the policies and impact of the Hostile Environment strategy across different aspects of everyday life. Here, we examine the impact on access to health services, focusing on charging policies and data sharing.
Charging for NHS access
The National Health Service was founded in 1948, based on the principle of universal healthcare, free at the point of access. An amendment in 1949 allowed for the charging of people not ‘ordinarily resident’ for hospital treatment, a concept used again but not clearly defined in the National Health Service Act 1977. The principle of charging those not ‘ordinarily resident’ was reaffirmed by Tony Blair’s New Labour Government in 2006 (Medact 2020) but was not applied consistently.
However, the hostile environment strategy, and the context of political and media discourses of ‘health tourism’, the austerity regime and the NHS funding crisis, brought new changes. The Coalition Government – followed by the Conservative Government – significantly restricted NHS access through the Immigration Acts 2014 and 2016 and the regulations of 2015 and 2017. The Immigration Act 2014 narrowed the definition of ‘ordinarily resident’ (Lonergan 2020, Medact 2020), excluding many people from access to health services. It also introduced the Immigration Health Surcharge for those applying to move to the UK for six months or more with ‘temporary’ visas and people already living in the UK seeking limited leave to remain (Vassiliou 2020). The surcharge, currently £624 per adult per year and £470 per child per year, along with rapidly escalating Home Office visa application fees, has made it unaffordable for many people wishing to renew their leave to remain in the UK: many families and individuals have been forced into debt or risk losing their residency rights and thus their right to access the NHS.
For those not eligible for free secondary healthcare, the regulations have increased fees to up to 150% of cost, and extended charging to services including pregnancy termination and community mental health services (Medact 2020: 8). The 2017 regulations require NHS Trusts to check that all patients are eligible before providing care, to note patients’ chargeable status on their records, to charge upfront those who are deemed ineligible (Medact 2020: 8), and to refuse care to those who cannot pay, unless treatment is deemed urgent or ‘immediately necessary’ (in which case patients are to be charged retrospectively) (DHSC 2021a).
Determining who can access which NHS services free of charge is highly complex, as is apparent from government guidance on implementing charging regulations (DSHC 2021b). Some services, such as GPs, accident and emergency services and investigation and treatment of COVID-19, are free of charge regardless of immigration status, whilst certain groups are exempt from charging for services which are otherwise chargeable (Public Health England 2021, DSHC 2021b). The need to determine patients’ immigration status and entitlements to healthcare places managers and clinical staff in the position of border guards, compromising ‘the centrality of their duty of care’ (Uthayakumar-Cumarasamy 2020: 134). The complicated rules mean decisions as to whether a patient is eligible for free caremay not be fully informed and care may be wrongly denied (Button et al. 2020, Harris and Hardwick 2019, Skinner and Salhab 2019).
Whilst the government has claimed the policy of charging for care is necessary to recuperate the cost of providing care for migrants, this does not match economic realities (Button et al. 2020, Medact 2020). Promoting a misleading narrative of ‘health tourism’, which it has linked to ‘temporary migrants’, the government has failed to acknowledge the impact of austerity cuts on NHS finances, and has not considered the harm to individuals or the cost to public health of denying access to healthcare for sections of society (Hiam et al. 2018, Medact 2020, Button et al. 2020).
Moreover, policies restricting access to healthcare do not appear to achieve the government’s own objective: the costs of setting up a charging system may exceed the amount recuperated, partly because many of those targeted do not have the resources to pay (Button et al. 2020: 9). In 2017, the Department of Health and Social Care commissioned three investigations into the impact of charging regulations on access to the NHS, but did not publish the reports (Campbell 2019). Several European studies have shown that making preventive care universal and free to all is ‘more cost effective than restricting access to certain migration statuses’ (Medact 2020: 9). Restrictions are often ‘more costly in the long run, both to individuals and to society as a whole’ (Medact 2020: 10; see also Button et al. 2020). Reluctance to access primary care services in the hostile environment is likely to increase the need for (and therefore costs of) secondary care (Papageorgiou et al. 2020).
There is deep concern amongst healthcare professionals that the policy of charging undermines the NHS principle of treatment being universal and free at the point of access, based on need rather than ability to pay (Worthing et al. 2021, Weller and Aldridge 2019, Medact 2020). Evidence indicates the policy is increasing existing health inequalities and creating barriers to identifying and preventing communicable diseases (Poduval et al. 2015).
Data sharing between NHS Digital and the Home Office
Between January 2017 and May 2018, a Memorandum of Understanding (MOU) between NHS Digital and the Home Office was in place, formalising existing arrangements whereby NHS Digital passed non-clinical personal data of patients to the Home Office for the purposes of immigration enforcement (DOTW 2017). This was implemented despite no public consultation having taken place (Hiam et al. 2018, DOTW 2017). The government attempted to justify this move on the basis of public interest, claiming it was necessary for ‘maintaining effective immigration controls’, as ‘it is in the public interest that limited UK resources and public services (including the NHS, jobs, schools, housing) are protected from unnecessary financial and resource pressures’ (Home Office 2017, cited in Hiam et al. 2018). Public Health England highlighted that data sharing could deter asylum seekers and undocumented migrants from engaging with healthcare services (PHE 2017, cited in Hiam et al. 2018).
Following an inquiry by the Health and Social Care Select Committee, the agreement was suspended in November 2018, and the withdrawal of the MOU was published on the gov.uk website on 29 January 2019 (Papageorgiou et al. 2020). However, data sharing practices are still in place, for example in the case of patients owing the NHS £500 or more (Weller and Aldridge 2019). Such information may be used by the Home Office to refuse applications for visas, renewal of leave to remain, or entry at the border (Button et al. 2020, Hiam et al. 2018). Concerns have been raised about the ‘lack of transparency in the development and dissemination of the policy by government’ and the impact on migrants’ access to healthcare, including the undermining of trust in relationships with clinicians (Papageorgiou et al. 2020, PICUM 2021).
The impact of hostile environment policies in the NHS
Charging for services, fears about personal data being shared with the Home Office, and confusion on all sides resulting from complex rules on eligibility all play a role in preventing access to healthcare, with often harmful consequences. In some cases, treatment has being wrongly withheld (Weller et al. 2019, Papageorgiou et al. 2020, Nellums et al. 2021, Heslehurst et al. 2018, Harris and Hardwick 2019). Opportunities for prevention are missed and conditions may become more severe, leading to avoidable hospitalisations (Weller et al. 2019). Not seeking treatment for infectious diseases – including COVID-19 – presents risks to individuals and to the wider population. And as the Safe Surgeries campaign has identified (DOTW 2020a), barriers to registering with a GP still exist, despite this being a right for all regardless of immigration status – preventing health issues from being identified and treated early.
Hostile environment policies erode trust in the healthcare system. Exclusion from healthcare impacts on psychological needs, including feeling safe and a sense of belonging (Martin 2020). Individuals’ experiences of ‘rejection, discrimination, ostracism, betrayal and stigmatisation’ as a target of the policy may have a negative impact on self-esteem and personal health, problematise engagement with services, and exacerbate marginalisation (Martin 2020). Moreover, navigating hostile environment policies to seek access to healthcare is likely to increase stress, which can exacerbate physical symptoms.
People not eligible for free secondary care but who receive urgent or immediately necessary treatment are presented with unaffordable bills, and may be pursued by bailiffs unless a repayment plan can be agreed, causing significant stress and worry (Jayanetti 2019).
The impact on women and girls
The hostile environment in the NHS has a gendered impact. First, women are more likely to arrive in the UK as dependants and thus are at greater risk of becoming undocumented, increasing fears of accessing the NHS and inability to pay charges (Weller et al. 2019). Second, women may need services specifically for women, for example in relation to sexual or reproductive health. Third, for many women, becoming a mother means shared, primary or sole responsibility for their child/ren’s health and wellbeing, including accessing health services. Fourth, women are at greater risk of abuse and exploitation, which shapes needs for and access to healthcare in multiple ways.
Girls and women may experience violence before, during and/or following migration to the UK, including rape, sexual assault, domestic abuse, female genital mutilation (FGM), trafficking and forced marriage. Domestic abuse, including coercive control, may start or increase during pregnancy (Harris and Hardwick 2019). Regardless of status, women experiencing violence face numerous barriers to seeking help and reporting to police; migrant women, in particular those with insecure immigration status, face additional barriers. Women whose leave to remain and access to healthcare is dependent on a spousal visa may be trapped in an abusive relationship (Harris and Hardwick 2019).
The impact of COVID-19
NHS charging has remained in place since the start of the pandemic. Although COVID-19 testing, treatment and vaccines are free, lack of awareness of this as well as existing fears of personal data being shared with the Home Office create barriers which could impact on individual and public health. The trust eroded by the Hostile Environment strategy cannot be restored overnight: fears of detention and deportation remain and continue to deter access to health services (DOTW 2020b, JCWI 2021).
A rapid needs assessment by Doctors of the World (DOTW 2020b) identified that refugees, asylum seekers and undocumented migrants are struggling to access COVID-19 guidance as a result of digital exclusion and language barriers. Moreover, guidance is often difficult or impossible to implement, such as distancing for those living in shared houses with communal facilities or overcrowded accommodation, or minimising shopping trips to buy food for those surviving on prepayment cards. Migrants with insecure immigration status face additional barriers to advice and treatment for COVID-19 or non-COVID-19-related illness due to the suspension of some face-to-face/outreach services and difficulties accessing services by phone or online (DOTW 2020b, Racial Justice Network 2021). Undocumented migrants who are sofa-surfing, or in otherwise precarious accommodation, face eviction if they display symptoms of COVID-19 (DOTW 2020b). As a group, people with insecure immigration status have high rates of health conditions identified by PHE as increasing clinical vulnerability to COVID-19, and may be unaware they have a health condition and should be shielding (DOTW 2020b). Multiple barriers to COVID-19 vaccine confidence, including the erosion of institutional trust as a result of the hostile environment (PICUM 2021), have led to relatively low rates of vaccination (DOTW 2021).
Since the start of the pandemic, campaigners have called on the government to suspend all NHS charging, guarantee a firewall to prevent any data sharing between the NHS and the Home Office for immigration enforcement purposes, and suspend the ‘no recourse to public funds’ condition, in order to ensure all migrants can, and feel safe to, access health services, and specifically to enable all adults to get vaccinated against COVID-19 (Liberty 2020, JCWI 2020, Gardner 2021). Third sector migrants’ rights organisations have produced information for migrants, including those with insecure immigration status, clarifying who can get the COVID-19 vaccine, how to do this, and how to register with a GP.
The government’s hostile environment policies continue to restrict access to secondary healthcare services for migrants, both by imposing the surcharge on so-called ‘temporary’ migrants and by requiring NHS providers to deny access to those without leave to remain, to charge above actual cost for services which cannot be refused, and to share personal data with the Home Office of people deemed to owe the NHS more than £500. Meanwhile, the government is making it increasingly difficult to obtain both time-limited and permanent residency rights. These policies are having a significant detrimental impact on the physical and mental health and wellbeing of many people living in Britain, including children. These inequalities in access to healthcare have been exacerbated by the pandemic.
Resistance from healthcare professionals has been evident in various forms (Button et al. 2020). The Patients Not Passports campaign was set up in 2017 by Docs Not Cops and joined by Medact, Migrants Organise and the New Economics Foundation (NEF). Others have called for the suspension of the regulations restricting access to healthcare (Academy of Medical Royal Colleges 2019, Maternity Action 2019a) and for hostile environment data-sharing to stop (Liberty). Some NGOs, such as Doctors of the World, run clinics for migrants fearful of accessing the NHS. Resisting the hostile environment across the health sector to protect the founding principles of the NHS and basic human rights is challenging but necessary in the face of increasingly hostile political discourses and legislation.
References and resources
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 The concept of ‘ordinarily resident’ was addressed through case law (DHSC 2021: 24, Medact 2020: 15). Regulations introduced charging for overseas visitors in 1982.
 National Health Service Act 2006.
 As Gwyneth Lonergan points out, many people on so-called ‘temporary’ visas intend to reside in the UK for the ‘foreseeable future’, in particular those on spousal visas (Lonergan 2020: 11, 12), and many make economic contributions through taxes.
 By the government’s own estimate, the cost of deliberate misuse of the NHS by overseas visitors travelling to the UK for this purpose is relatively low (0.3% of the NHS budget), yet the government has downplayed this, as well as the fact that this group includes British expats (Medact 2020, Button et al. 2020).
 Many children born and/or raised in the UK are affected by undocumented status.