British citizens, permanent residents and those with the right of abode
automatically have the right to access housing assistance, benefits, free
healthcare and community care services. However, the position is somewhat
different for people from other countries.
Visas That Restrict Access to Public Funds
Many immigration visas restrict a person’s access to public funds, and the
restriction should be clearly stated on the visa in their passport. Examples of
the types of visas that preclude a person from claiming public funds are
visitors’ visas, spousal/fiance(e) and unmarried partner visas, work permit
holders’ visas, short term student visas etc. By being in receipt of ‘public
funds’ a person may be in breach of their visa restrictions and may also
prejudice a later application for further leave to remain in the UK. It is
advisable for anyone in this position to seek legal advice.
Public funds includes housing assistance, benefits (with certain exceptions),
but community care services and payments are not always included within the
definition of public funds. More information about public funds can be found on
the Home Office website.
Visitors
Current legislation states that although visitors coming from overseas may
have access to healthcare in the UK, the National Health Service is entitled to
charge for treatment. Emergency care is generally provided free of charge, but
once a person is released from the Accident and Emergency department to a ward
or outpatient clinic, they are often required to sign an indemnity to pay future
health care costs, which may be extremely expensive.
If a person has no funds with which to pay for their treatment and the
National Health Service refuses to provide treatment that they need, the
person’s own health care insurance or health service in their country may make
arrangements to meet the costs of treatment. Alternatively, they may wish to
seek legal advice as denial of health care might be in breach of their human
rights.
Some countries have reciprocal arrangements with the UK to pay for the
provision of health care.
European Citizens
European citizens are entitled to free health care without being required to
produce an E111 form. This includes nationals from the 8 Accession countries.
Asylum Seekers and Refugees
Asylum seekers, refugees and their family members are entitled to free health
care and treatment from the National Health Service. Asylum seekers and those
with an outstanding human rights claim based on Article 3 ECHR are entitled to
financial support and accommodation from the National Asylum Support Service
(NASS).
Where an asylum seeker has additional needs for care and attention apart from
the need for housing and financial assistance, for example they suffer from a
disability or physical or mental illness, it is possible that the duty to
accommodate and support them, and meet all eligible care needs, will fall on
Social Services and the Local Authority rather than on NASS. The asylum seeker
can request a Community Care Assessment in the usual way. Where there is a
dispute, a person should seek legal advice.
Failed Asylum Seekers
People whose claim for asylum, or Article 3 ECHR claim has failed, who have
been in the UK less than 12 months may be charged for their health care and
treatment (unless they are already on a course of treatment), although again
emergency treatment and immediately necessary health care is not usually
included on what they are required to pay for. Arguably, if a failed asylum
seeker is refused medical treatment that is needed there may potentially a human
rights challenge to that decision.
NASS support is usually terminated when a person’s asylum or Article 3 claim
fails and all appeal rights are exhausted. In this situation the person faces
street homelessness and destitution. In a case called Limbuela, the
Court of Appeal decided that by refusing failed asylum seekers access to
accommodation and support, actual destitution or anticipated destitution might
amount to a breach of that person’s human rights. Because of this decision NASS
must now offer failed asylum seekers emergency accommodation and support. This
is referred to as ‘Section 4’ support, but is only provided in certain
circumstances.
Where failed asylum seekers have care needs over and above those that arise
from destitution, they might be able to access support and accommodation from
their Local Authority, but this area of law is very technical and usually a
solicitor specialising in Community Care law and Immigration Law will need to be
consulted. Those with children might also be able to argue that their local
authority should accommodate their children under the Children Act 1989. Some
local authorities propose taking children into care in this situation, still
leaving the parent(s) homeless, but potentially there may be an argument that
such a decision would be in breach of the family’s human rights.
Overstayers
People who stay in the UK after their visa has expired and make no asylum or
Article 3 ECHR claim are referred to as ‘overstayers’. Overstayers are excluded
from access to the benefits system, housing assistance, they cannot work without
permission to do so from the Home Office and they cannot access NASS support.
Consequently, people in this situation are extremely vulnerable and often end up
street homeless or could be exploited.
Where an overstayer has care needs over and above those that arise through
destitution, i.e. that come from a disability or physical or mental health
problems, they might be able to access housing and support from Social Services
through Community Care legislation. Those with children might also be able to
argue that their local authority should accommodate their children under the
Children Act 1989. Some local authorities propose taking children into care in
this situation, still leaving the parent(s) homeless, but potentially there may
be an argument that such a decision would be in breach of the family’s human
rights.