4 Access to services
Background
64. Part 3 of the Bill introduces new powers
to regulate migrants' access to various services. A primary aim
of this Part of the Bill, according to the Government's ECHR Memorandum,
is "to make it more difficult for those who are not entitled
to remain in the United Kingdom (herein referred to as illegal
migrants) by limiting their access to services and benefits enjoyed
by those legally resident here."[44]
We note, however, that the restrictions on access to free NHS
health care are not confined to illegal migrants, but extend to
those who are lawfully in the UK but with limited leave to enter
or remain, and, in the case of the immigration health charge,
those applying for immigration permission.
65. The proposed restrictions on access to residential
tenancies and health services clearly fall within the scope of
the right to private, family life and home in Article 8 ECHR and
therefore the differential treatment on grounds of immigration
status requires reasonable and objective justification.
Access to residential tenancies
(clauses 15-32)
66. The Bill introduces a disqualification from
renting or occupying property in the private rented sector on
grounds of immigration status.[45]
A person who is not a British citizen or EEA or Swiss national,
and has no right to be present in the UK, is disqualified from
occupying premises under a residential tenancy agreement. The
disqualification is given effect by a prohibition on landlords
renting property to disqualified people,[46]
enforced by a civil penalty of up to £3,000 for a contravention
of the prohibition.[47]
RISK OF INHUMAN OR DEGRADING TREATMENT
67. The Government's ECHR Memorandum considers
whether the proposed restriction on access to the private rental
sector is compatible with the right in Article 3 ECHR not to be
subjected to inhuman or degrading treatment, in light of the decision
of the House of Lords in the case of Limbuela.[48]
The House of Lords in that case held that the high threshold
of "inhuman or degrading treatment" may be crossed if
an individual with no means and no alternative sources of support,
who is unable to support himself, is, by the deliberate action
of the state, denied shelter, food, or the most basic necessities
of life.
68. The Government says in its ECHR Memorandum
that it is particularly relevant to assessing the ECHR compatibility
of these provisions concerning landlords in Part 3 that a foreign
national who is present in the UK but without the necessary leave
essentially has the option of being subject to these measures,
because they could choose not to be either by obtaining lawful
status if they are entitled to it, or by leaving the UK.[49]
However, not everyone who requires leave to enter or remain in
the UK but does not have it is necessarily free to leave the UK:
there may be legitimate barriers that prevent them from doing
so. The Bill's restrictions on access to residential tenancies
therefore give rise to a risk that such people will be denied
shelter and therefore subjected to inhuman or degrading treatment
as recognised by the House of Lords in Limbuela.
69. In the Government's view, however, the restriction
on access to residential tenancies in the Bill will not have this
effect.[50] It says
that the people disqualified from taking up residential tenancies
in the private rented sector are "those present in the UK
in breach of the immigration laws, and in respect of whom it is
considered there is no legitimate barrier which prevents them
from leaving the UK." It is therefore either open to them
to make arrangements to leave the UK in order to access accommodation,
or, where it is accepted that there is a legitimate barrier which
prevents an individual leaving the UK, the Secretary of State
will have the discretion to grant them permission to rent.[51]
70. The Bill also provides for exceptions from
the prohibition,[52]
including for arrangements made by local authorities in fulfilment
of any statutory obligation, which will cover arrangements made
for children and families under the Children Act 1989, for individuals
provided with accommodation under the National Assistance Act
1948 and the Mental Health Act 1983, and accommodation provided
by hostels for vulnerable individuals. The Government says that
these exceptions from the prohibition mean that the vulnerable
and those in need of additional support who are unable to support
themselves will be able to access appropriate services. The Government
is therefore satisfied that this Part of the Bill is compatible
with Article 3 ECHR.
71. The combination of the exceptions for certain
kinds of accommodation and the Secretary of State's discretion
to grant permission for access to a residential tenancy certainly
ameliorate the risk that the Bill will give rise in practice to
breaches of Article 3 ECHR. The ECHR Memorandum,[53]
however, gives the impression that the disqualification from renting
only applies to a migrant who the Secretary of State considers
faces no legitimate barrier preventing them from leaving the UK:
those persons who are disqualified from taking up
residence as their only main home in the private rented sector
are those present in the United Kingdom in breach of the immigration
laws and in respect of whom it is considered there is no legitimate
barrier which prevents them from leaving the UK.
72. In fact there is no such precondition: rather,
the onus in on the person in question to avoid the disqualification
applying by asking the Secretary of State to exercise her discretion
in their favour. We asked the Secretary of State to explain how,
in practice, a person who lacks the necessary leave to enter or
remain, but genuinely faces such a barrier to leaving the UK,
avoids being caught by the disqualification from occupying rented
premises in the Bill.
73. The Minister replied that where a person
is remaining in the UK without leave and faces recognised barriers
to leaving the UK, the Secretary of State will be able to provide
a "right to rent" on a temporary basis. He said that
such a tenant will be able to secure from the Home Office evidence
that they are able to rent before entering the housing market,
and a landlord would then be able to obtain verification of this
right to rent from the Home Office within 48 hours. The response,
however, provides no more detail about how the residual discretion
will work in practice to ensure that those facing genuine obstacles
to leaving the UK are not left homeless as a result of the operation
of the new provisions.
74. We are concerned about the
risk of the new provisions giving rise in practice to breaches
of Article 3 ECHR in the case of people who have no right to remain
in the UK but face genuine barriers to leaving. The risk of the
Bill's provisions on residential tenancies exposing such people
to destitution depends to a large extent on how the Secretary
of State's residual discretion to grant permission to occupy residential
premises will operate in practice. We do not feel that we have
been provided with sufficient detail of how that discretion will
operate in practice to be confident that the provisions in the
Bill will not give rise to a risk of breaches of Article 3 in
practice where people who face a genuine barrier to leaving the
UK are left effectively homeless because they are prevented from
finding a residential tenancy by the disqualification in the Bill.
RIGHT TO RESPECT FOR PRIVATE LIFE,
FAMILY LIFE AND HOME
75. The Government's ECHR Memorandum also considers
whether the restriction on access to residential tenancies is
compatible with the right to respect for private life, family
life and home under Article 8 ECHR. It accepts that the restriction
constitutes an interference with those rights, but argues that
it is justified as being both necessary and proportionate in pursuit
of the aim of immigration control. Its purpose, it says, is to
support the effective operation of immigration controls by restricting
the ability of persons subject to immigration control to obtain
settled accommodation, and the measure is proportionate to that
aim because the individuals affected can either regularise their
immigration status in the UK or leave the UK. Where the application
of the restriction would otherwise produce a disproportionate
impact, such as where there is a genuine barrier to an individual
leaving the UK, the Government says that the restriction is still
proportionate because the Secretary of State has discretion to
grant them permission to occupy premises despite their immigration
status.
76. The degree of risk of the proposed restriction
on access to residential tenancies giving rise to breaches in
practice of the right to family life and home in Article 8 ECHR
also depends on the likely impact of the provisions on children.
The provisions are clearly capable of operating in a way which
interferes with the right to family life, for example by separating
a child from their parents, and with the right to respect for
a child's home, where they operate to restrict the child's access
to occupying rented accommodation. When determining the proportionality
of any such interferences, the best interests of any child affected
are, as the Government accepts in its response to the our letter,
an integral part of the proportionality assessment.
77. We are concerned to ensure
that the Bill does not give rise to an undue risk that migrant
children will be exposed to homelessness or separation from family
members as a result of these provisions on residential tenancies,
and we urge the Government to explain fully to Parliament the
safeguards that exist to mitigate in practice the possible negative
impact of these provisions on children.
NON-DISCRIMINATION
78. As far as compatibility with Article 14 in
conjunction with Article 8 is concerned, the Government in its
ECHR Memorandum relies on the wide margin of appreciation afforded
to differential treatment based on immigration status in relation
to socio-economic matters.[54]
It relies on the same justification, namely that the difference
in treatment is justified in order to maintain immigration control,
by restricting the ability of persons subject to immigration control
to obtain settled accommodation. Two distinct discrimination
questions arise:
- first, has the Government demonstrated
an objective and reasonable justification for this differential
treatment in relation to access to a home on grounds of nationality
and immigration status? and
- second, will the obligation on landlords to check
the immigration status of prospective tenants result in discrimination
in the provision of services on racial grounds, contrary to the
Equality Act as well as Article 14 ECHR in conjunction with Article
8?
Justification for differential treatment on grounds
of nationality and immigration status
79. The questions that arise here are not identical
to those that arise in relation to access to free health care
(considered below). The Government's aims there include the aim
of protecting the budget of resource-hungry public services.
These provisions, however, concern access to a private supply
of residential tenancies, and the sole objective is to reinforce
immigration control by making it harder for illegal immigrants
to remain in the country. The State has fewer grounds to claim
a wide margin of appreciation in those circumstances. These provisions
also discriminate directly on nationality grounds. Such discrimination
carries a greater onus of justification than discrimination on
the grounds of immigration status alone.
80. As noted above, the purpose of the differential
treatment introduced by the Bill is immigration control: to support
the effective operation of immigration controls by restricting
the ability of people subject to immigration control to obtain
settled accommodation. This is clearly a legitimate aim for the
purposes of Article 14 ECHR. The principal issue, therefore,
is whether the Government has demonstrated that a measure which
exposes people to the risk of homelessness and destitution, on
the grounds of their nationality and/or immigration status, by
making it harder for them to obtain living accommodation, is proportionate
to the legitimate aim of encouraging people with no leave to remain
to leave the country and can be objectively and reasonably justified.?
81. The Government largely relies on the wide
margin of appreciation to which it says it is entitled where differential
treatment is based on immigration status, and having regard to
the socio-economic nature of the subject matter. Given the risk
of homelessness in cases where there are genuine barriers to leaving
the UK, the overt nationality discrimination involved in the measure,
and the fact that the aim of the measure is not to ration scarce
public funds but to regulate access to privately provided services,
simple invocation of a wide margin of appreciation is not enough
on its own to justify the differential treatment.
82. We note that the Bill appears to provide
stronger safeguards in relation to the disqualification from opening
bank accounts than it provides in relation to the disqualification
from renting living accommodation, which involves a much more
serious interference with the individual's human rights. The
scheme of the provisions concerning bank accounts requires the
Secretary of State to determine that the individual in question
is a disqualified person, and to have notified the relevant organisation,
with which the bank or building society must carry out a "status
check" to ascertain whether the person in question is disqualified.[55]
As the Government's ECHR Memorandum correctly states, this means
that "the restriction will not be applied on a blanket basis,
but targeted against those individuals who may be expected to
make arrangements to leave the country."[56]
The disqualification from occupying premises under a residential
tenancy agreement on grounds of nationality and/or immigration
status, is not similarly targeted, but is a blanket prohibition,
subject to the Secretary of State's residual discretion which,
it appears, must be invoked by the individual concerned before
they seek to occupy premises under a residential tenancy agreement.
83. As we have explained above, we
consider that the Government needs to satisfy Parliament that
the risk of subjecting non-nationals to homelessness is objectively
and reasonably justified, including by demonstrating that the
Secretary of State's residual discretion is likely to operate
in practice to prevent such homelessness in cases where there
are genuine barriers to leaving the UK.
Racial discrimination in the provision of services
84. The Bill itself acknowledges the potential
for these provisions to lead to unjustified discrimination on
racial grounds in the provision of services in breach of the prohibition
on such discrimination in the Equality Act 2010: it provides for
the Secretary of State to issue a code of practice specifying
what a landlord or agent should or should not do to ensure that
the landlord or agent avoids discriminating on racial grounds.[57]
We asked the Government to provide some specific examples of
the sorts of things that landlords will be advised they should
or should not do in order to avoid discriminating on racial grounds
against prospective tenants, and how it proposes to monitor whether
the new provisions are leading to discrimination on racial grounds
against members of ethnic minorities, whether permanent residents
or UK nationals, who are entitled to enter into residential tenancy
agreements.
85. The Government's response refers to the draft
Code of Practice relating to discrimination and the draft Code
of Practice for Landlords, both of which have been published since
we began our scrutiny of the Bill. Landlords will be advised
to conduct checks in the prescribed manner in a consistent fashion
in relation to all tenants and occupants. Some examples of the
steps that a landlord or their agent is advised to follow are:[58]
- ensuring that advertisements
make clear that successful applicants will need to evidence their
immigration status before a tenancy agreement will be granted;
- informing all applicants who contact them that
they will need to be able to produce evidence of their eligibility
to rent the premises, for all people who will live there as their
only or main residence;
- only once a potential tenant has been selected,
asking them for confirmation of their entitlement to rent, and
for all persons who will be living there as their only or main
residence, regardless of their race, ethnic origin or nationality.
86. Guidance on conducting checks will also set
out a step-by-step process that the Government says will, if applied
correctly in relation to all tenants, assist the landlord to act
in a manner that does not breach equalities legislation. The
Government proposes to provide an online tool for landlords similar
to that which already exists for employers in relation to the
similar scheme concerning the right to work.
87. As far as monitoring is concerned, the Government
says that the Home Office will work with the Equality and Human
Rights Commission, the Government Equalities Office and local
authorities to monitor the evidence of discriminatory behaviour
in the private rented sector. The Home Office has already worked
closely with housing charities, bodies representing landlords
and letting agents and is considering convening a forum of these
bodies to facilitate the sharing of experience in future.
88. We welcome the draft Codes
of Practice and the Government's commitment to monitor for evidence
of discriminatory behaviour in the private rented sector. However,
we are aware of recent reports that, under the current law, letting
agents continue to discriminate on racial grounds notwithstanding
the legal prohibition on such discrimination contained in the
Equality Act. A Runnymede Trust survey
found that more than a quarter of black and Asian respondents
have felt discriminated against when trying to rent private accommodation
and a BBC investigation (for the "Inside Out London"
programme) found that a number of estate agents in London were
willing to co-operate with a landlord who professed a racist desire
to ensure that their property was not rented to black people.
89. In our view, the provisions
in the Bill on access to residential tenancies heighten the risk
of such discrimination on racial grounds against ethnic minority
prospective tenants, both UK citizens and foreign nationals with
permanent residence, who are entitled to rent, notwithstanding
the fact that such discrimination is unlawful under the Equality
Act. We ask the Government not to commence theses provisions
until the Equality and Human Rights Commission and the Government
Equalities office are satisfied that there are sufficient safeguards
in place to prevent such discrimination from arising in practice.
We recommend that the EHRC work closely with the Government Equalities
Office, landlords' representatives and local authorities to monitor
for evidence as to whether such unintended consequences of the
provision are materialising in practice, and that the Government
keep the provision under careful review in the light of the evidence
produced by such monitoring.
Access to health services
90. The Bill contains two provisions designed
to restrict access by migrants to free health care on the NHS:
(1) the "immigration health charge" which
the Secretary of State can impose on people applying for immigration
permission, such as entry clearance or leave to enter or remain
for a limited period;[59]
and
(2) extending the reach of the existing NHS charging
provisions, which already provide the power to charge for health
services those who are not "ordinarily resident" in
the UK, by providing that those who require leave to enter or
remain and do not have it, and those who have limited leave to
enter or remain, are not to be treated as "ordinarily resident".[60]
91. The Government does not propose to change
in any way the exemptions from charging which already apply.
So, for example, under the current NHS charging provisions, migrants
who are not ordinarily resident and who are therefore chargeable
for NHS care are able to access emergency treatment for free.
Even where a person is liable to pay charges under the existing
regulations, the treatment they need is not held up for payment
where the treatment is urgent or immediately necessary. Exemptions
also apply for treatment for certain specified serious communicable
diseases, on public health grounds. The Government's ECHR Memorandum
is therefore correct when it says that the immigration health
charge proposals in the Bill are not incompatible with the right
to life in Article 2 ECHR or the right not to be subjected to
inhuman or degrading treatment in Article 3 ECHR.
NON-DISCRIMINATION
92. However, these provisions in the Bill clearly
treat people differently in relation to their access to free health
care according to their nationality and immigration status, and
therefore raise a question as to whether they are compatible with
the right not to be discriminated against in the enjoyment of
Convention rights concerning life, treatment and bodily integrity
(Article 14 ECHR in conjunction with Articles 2, 3 and 8). The
question is whether the Government has provided an objective and
reasonable justification for treating temporary migrants differently
from permanent migrants and UK citizens in relation to their access
to free health services. That question falls to be considered
in the legal framework outlined above.
93. We have borne in mind, in considering the
ECHR compatibility of the health-charging provisions in the Bill,
that the European Court of Human Rights, as the Government correctly
points out, will usually afford a relatively wide "margin
of appreciation" (or area of discretion) to States in determining
whether differential treatment in relation to access to free health
care on grounds of immigration status is objectively and reasonably
justified, partly because the subject matter (access to free health
care) will be regarded as predominantly socio-economic and partly
because immigration status involves an element of choice.
94. Nevertheless, differential treatment based
on a combination of nationality and immigration status (as the
health charging provisions are) still requires "weighty justification",
and we have also borne in mind the risk that such provisions,
even if compatible with the ECHR on their face, may give rise
to actual breaches in their application. In the case of Ponomaryovi
v Bulgaria, for example, the European Court of Human Rights
found a violation of the right not to be discriminated against
in the enjoyment of the right to education where two Russian boys
living in Bulgaria who had not yet acquired Bulgarian citizenship
were charged for their secondary education on the grounds that
they were not permanently resident.
Legitimate aim
95. The rationale for these measures restricting
free access to NHS health services is stated in a number of places,
in formulations which vary slightly. The Explanatory Notes to
the Bill state that the purpose of the immigration charge provision
is "to ensure that migrants pay towards the cost of health
treatment available in the UK commensurate with their more limited
immigration status."[61]
The Factsheet on the NHS published alongside the Bill similarly
says that the Government's aim is "to ensure that those subject
to immigration control should have access to public benefits proportionate
to their type of immigration statusreflecting the strength
of their connection to the UK."[62]
The Government's ECHR Memorandum repeats these statements that
the purpose of the immigration charge provision is to ensure the
law reflects the Government's "policy that different immigration
statuses entitle the individual to have greater or lesser access
to benefits and entitlements in the United Kingdom, including
access to NHS care for free", but adds a further, distinct
rationale"andto ensure that free NHS access
does not act as an incentive for temporary migration".[63]
96. In view of the different rationales relied
on in the Government's explanatory material, we asked the Government
whether the differential treatment of temporary migrants is justified
by the need to reinforce immigration control or the degree of
connection with/commitment to the UK. The Government's response,
in short, is that the restrictions are designed to serve both
purposes, but that the primary aim is to ensure that a person's
access to benefits should be commensurate with their immigration
status in the UK:
"Free NHS services may act as an incentive for
some temporary migrants, but the Bill is primarily aimed at ensuring
that a person's access to benefits should be commensurate with
their immigration status in the UK. Our intention is to bring
the rules regulating migrant access to the NHS into line with
wider government policy on migrant access to benefits and social
housing. Immigration legislation largely restricts access to these
benefits to those non-EEA nationals with indefinite leave to remain
and those granted refugee status or humanitarian protection in
the UK. But there has been a long-term failure to apply the same
criteria on health access. These clauses will correct that."[64]
97. The rationales relied on by the Government
to justify the restrictions on access to free healthcare, therefore
essentially boil down to two, of which the first is clearly the
primary purpose:
(1) to confine free access to health services to
those who have a significant connection to the UK, in line with
the wider Government policy that a person's access to state benefits
should be commensurate with their immigration status; and
(2) to reinforce immigration control by reducing
the incentive for a person to come to the UK because of the free
healthcare benefits.
98. We also asked the Government what evidence
it relies on to demonstrate the scale of so-called "health-tourism"
and that free NHS access acts as an incentive to temporary migration
to the UK. The Government in its response did not point to any
evidence in relation to the latter question, merely commenting
that free NHS services "may" act as an incentive for
some temporary migrants. On the first question, however, it referred
us to the two research studies recently published by the Department
of Health and examining the costs to the NHS of treating overseas
nationals.[65]
99. It says that "health tourists",
by which it means people who are not resident in the UK but who
have travelled here intending to obtain free NHS care to which
they are not entitled or not to pay the charges for such care,
are by their very nature difficult to identify and thus quantify
because they are likely to make efforts to conceal their true
eligibility status. Nevertheless, the Department of Health report
of independent research into the costs to the NHS of treating
visitors and migrants, which was independently peer-reviewed by
experts, estimated that the cost of health tourism is between
£70m and £300m a year. That global figure is made up
of an estimate of between £20m and £100m in costs of
deliberate health tourism for urgent treatment plus between £50m
and £200m in the costs of regular visitors taking advantage
of using the NHS for pre-existing needs whilst visiting the UK
for other reasons. The Government also points out that health
tourism as defined above is only one aspect of misuse of the NHS.
The report it refers to estimates that a further £388m a
year is spent on patients who find themselves in need of health
care while in England and who should already be paying for their
care, but who are not currently charged by the NHS.
100. Our predecessor Committee in the last Parliament,
in its Report on The Treatment of Asylum Seekers, considered
this question in the context of proposals to charge refused asylum
seekers for health care and concluded that "the Government
has not produced any evidence to demonstrate what it describes
as 'health tourism' in the UK."[66]
The Department of Health's recent research clearly represents
a significant advance on that position. However, the weight to
be attached to it as a justification for the health charging provisions
in the Bill is a matter for debate. The range of estimated cost
is very wide and the Government itself accepts that the scale
of the problem is very difficult to quantify. There has been
a very lively debate in the media about what the Department of
Health's research establishes and the extent to which it makes
out a justification for the health charging provisions in the
Bill. The inherent difficulties with the evidential base in relation
to health tourism and misuses of the NHS by migrants may explain
the secondary status of the immigration control rationale for
the measures restricting access to free health care. Given
the very wide range of the estimates it has produced, we caution
against ascribing too much weight to the Department of Health's
research when assessing whether the Government has demonstrated
an objective and reasonable justification for the differential
treatment to which the health charging provisions in the Bill
give rise.
Proportionality
101. Turning to the primary rationale for the
restrictions, namely bringing access to health care into line
with the wider Government policy that a person's access to state
benefits should be commensurate with their immigration status,
we have considered whether there is a rational connection between
the end which it is sought to achieve and the means by which it
seeks to do so, namely applying a threshold of indefinite leave
to remain. The BMA, in its parliamentary briefing on the Bill,
questions the equity of using indefinite leave to remain as the
qualifying criterion for entitlement to free NHS services, "given
the significant variations in the length of time it can take different
individuals to become eligible for indefinite leave to remain".
102. We asked the Government whether, having
regard to the wide variety of types of immigration permission
and the varying degree of connection with the UK that accompanies
each type of permission, it is the Government's intention that
the amount of the proposed immigration charge will vary according
to the type of immigration permission sought and, if so, what
criteria will be used to determine the appropriate amount of the
charge.
103. The Government replied that it expects the
Secretary of State to set the surcharge at around £150 for
students and around £200 for other temporary migrant categories,
but to exempt Tier 2 Intra Company Transfers from the charge altogether
"in recognition of their particular contribution to the UK
economy." When setting the levels of the charge, the Secretary
of State is free to take into account considerations such as maintaining
the UK's competitiveness in the international market for skilled
workers and fee-paying students. Indeed, it has made clear that
it intends to do so by stating its intention to exempt certain
temporary migrants from the charge altogether on the basis of
the contribution that group makes to the UK economy. The Government
says that the proposed levels of the charge do not attempt to
reflect the total annual cost of the consumption of health services
by temporary migrants in the UK; rather they reflect a proportionate
contribution. It estimates that the charge will generate "an
additional £1.9 billion" for the taxpayer over 10 years
(we presume that this is a net figure after taking account of
the costs of administering the scheme).
104. We have considered the
extent to which immigration status is a reliable proxy for degree
of connection with the UK. We consider that there are questions
to be answered about whether there is a rational connection between
the Government's aim of ensuring that a person's access to health
care is commensurate with their immigration status and the means
by which it seeks to do so, namely applying a threshold of indefinite
leave to remain. We call on the Government to explain further
why there is a sound fit between the stated rationale that entitlement
to free health care should be commensurate with immigration status
and the selected criterion of indefinite leave to remain.
105. We also asked the Government whether any
immigrants paying taxes will also be subject to the new immigration
health charge and, if so, what is its best estimate of the proportion
of those subject to the charge who will also be paying taxes.
The Government replied that the charge will apply to most temporary
migrants with leave of more than 6 months. A proportion of those
migrants already pay tax in the UK, including direct taxes such
as National Insurance, but the Government says that it is difficult
reliably to estimate the proportion of those paying the surcharge
who will also be paying such direct taxes, because many of those
paying the surcharge will not ordinarily be resident in the UK
for tax purposes.
106. The extent to which the proposed immigration
charge will result in double recovery, because it applies to temporary
migrants who are already contributing to the costs of the NHS
through payment of National Insurance, is relevant to any assessment
of the proportionality of the measure. It appears, however, that
the Government is not in a position to provide even an estimate
of this information. The
unavailability of this information does not assist Parliament's
consideration of whether the Government has demonstrated that
the differential treatment of temporary migrants by the introduction
of the immigration health charge is objectively and reasonably
justified.
107. We also asked the Government what the justification
is for treating a temporary migrant who pays the health surcharge
differently from a permanent resident in terms of their access
to "particularly expensive discretionary treatments".
The Government says in response that it is considering (but has
not yet decided) whether to exclude a very limited set of treatments
that would not be covered by payment of the surcharge and would
therefore be charged at the point of treatment. Some services,
it says, may either not be medically necessary during a temporary
stay and/or be particularly expensive or scarce, so it is necessary
to consider if it is appropriate to provide them to a temporary
resident without a strong long-term commitment to the UK.
108. If charging for particularly
expensive discretionary treatments were to be a feature of the
health charging scheme it would introduce a further source of
differential treatment which would require objective and reasonable
justification. However, we consider that it would be premature
for us to express a view on the question before the Government
has decided whether it will be a part of the scheme. If the Government
so decides, Parliament will need to be provided with more information
about the exact criteria by which it will be decided which treatments
are not covered by the immigration health charge.
44 ECHR Memorandum, para. 4. Back
45
Clause 16. Back
46
Clause 17. Back
47
Clause 18. Back
48
R (Limbuela) v Secretary of State for the Home Department
[2005] UKHL 66. Back
49
ECHR Memorandum, para. 7. Back
50
ECHR Memorandum, para. 94. Back
51
Clause 16(3). Back
52
Schedule 3. Back
53
Para. 94. Back
54
ECHR Memorandum, para. 99. Back
55
Clause 35. Back
56
ECHR Memorandum, para. 132. Back
57
Clause 28. Back
58
Draft Code of Practice, para. 25. Back
59
Clause 33. Back
60
Clause 34. Back
61
EN para. 22. Back
62
Factsheet: National Health Service. Back
63
ECHR Memorandum, para. 109. Back
64
Letter to Chair from Mark Harper MP, Q25. Back
65
https://www.gov.uk/government/publications/overseas-visitors-and-migrant-use-of-the-nhs-extent-and-costs. Back
66
Tenth Report of Session 2006-07 at para. 129. Back
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