Community Care, Healthcare and Immigration/Asylum
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 recent 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.
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