Patients or passports? The ‘hostile environment’ in the NHS

The involvement of the NHS in immigration control

In the NHS, this came in the form of the National Health Service (Charges to Overseas Visitors) Regulations 2015² and 2017 amendment.³ This policy provides a mandate for charging patients not ‘ordinarily resident’, including those without ‘regularised’ immigration status and refused asylum seekers, for secondary care at 150% the actual cost. The 2017 amendment increased the range of services that are chargeable to include community-based secondary care and placed a statutory duty on trusts to charge all patients upfront for treatment. Treatment is refused if patients are unable to pay. If the care is deemed ‘urgent’ or ‘immediately necessary’ care should not be withheld, although in practice this is not always the case, but patients unable to pay the full cost upfront can be charged retrospectively. Some NHS trusts employ private debt collectors to recoup these costs.⁴

It is of note that charging patients for NHS care on the basis of their immigration status is not new, and nor is organised resistance against this practice. In the 1980s, an attempt to implement such charges was made, but this was swiftly abandoned after resistance from migrant organisations, trade unions and healthcare workers.⁵

The insertion of immigration control in the NHS goes beyond charging patients to also include the following:

• The NHS surcharge: those with visas to work or study in the UK have to pay £624 per adult visa (and £470 per child) per year to use the NHS, in addition to other forms of taxation; as a flat rate tax this disproportionately penalises lower paid workers.⁶

• Data sharing: demographic patient data are passed without consent from the NHS to the Home Office in cases where a patient has a bill of over £500 outstanding for more than 3 months. This data can then be used for immigration control purposes. Demographic data could also be requested by the Home Office from GP surgeries, although this memorandum of understanding has recently been suspended.^7,8

• Barriers to GP registration: NHS England guidance states proof of address and identification are not needed to register with a GP, and anyone can register regardless of immigration status. However, we frequently see registration denied to patients who cannot provide this documentation, posing further challenges to their ability to access care.⁹ It is likely this reluctance is in part connected to restrictive secondary care practices.¹⁰

While we argue there should not be a hierarchy of deservingness when it comes to healthcare – it is both a human right and a public good – there is clear evidence these policies have frequently been applied ‘incorrectly’, meaning even individuals deemed eligible for free NHS care have come to harm, with one notable example being those from the Windrush generation.¹¹ Critically, few people are in a position to challenge decisions made against them. When confidentiality is undermined – such as through data sharing – and fear of debt, deportation and discrimination is embedded in our health service, the ability for individuals to access the care they need is diminished and they come to harm themselves. Some die as a result. The cases of Elfreda Spencer,¹² Kelemua Mulat,¹³ Esayas Welday,¹⁴ Pauline Pennant,¹⁵ Beatrice,¹⁶ Bhavani Espathi,¹⁷ Simba Mujakachi¹⁸ and Nasar Ullah Khan¹⁹ have all been made public, but this is of course just the tip of the iceberg. None of these outcomes come as a surprise – and in fact reflect the explicit intentions of the ‘Hostile Environment’ to cut off vital access to healthcare as a means of immigration control.

The impact of COVID-19

While COVID-19 has ripped through communities, disproportionately affecting those living in deprivation and precarity, the NHS has continued to implement charging, affecting those often from already minoritised groups. Although testing for and treatment of COVID-19 is exempt from charges and free for all, research suggests many patients remain unaware of this and there have been tragic reports of individuals dying with COVID-19 at home, too scared to seek help.²⁰ The use of ‘exemptions’, where care for certain conditions remains free, has been shown previously to be ineffective by Potter et al.²¹ In regard to test and trace systems there have been no clear assurances about a data firewall with the Home Office and data sharing in secondary care continues. Additionally, we are yet to see clear communications or planning regarding those not registered with a GP regarding access to vaccination.

The ability to access appropriate and effective healthcare is central to improving health outcomes for all populations. While the NHS purports to be a universal, non-discriminatory healthcare system, free at the point of service, policies and practices associated with the ‘hostile environment’ undermine these values and are causing harm to our patients and communities. COVID-19 has further exposed the impact of structural racism on health, the multitude of ways this operates, and our shortcomings in evidencing and addressing it. The ‘hostile environment’ in health represents just one part of this, but NHS trusts must act immediately to end all charging and data sharing, and actively redress harms already caused.

Whilst ‘hostile environment’ policies represent only one part of the myriad ways structural and everyday racism operates to impact the health, they are an important one, and will of course form part of the picture of why COVID-19 has disproportionately affected minoritised communities. Evidence for this is already emerging – both Baroness Lawrence's report An avoidable crisis²² and the NHS Confederation's BME leadership network report Perspectives from the front line: The disproportionate impact of COVID-19 on BME communities²³ highlight that these policies have contributed to the racialised health inequalities by having ‘contributed to the systemic discrimination experienced by migrants and the UK's Black, Asian and minority ethnic population’.²² Both reports recommend immigration policy reform.

The Patients Not Passports campaign

As in the 1980s, healthcare workers, alongside those affected by charging and their communities, have been mobilising to bring an end to these harmful policies. At present the Patients Not Passports campaign represents a broad coalition of groups and calls for NHS trusts to act immediately and end all charging and data sharing, as well as to actively redress harms already caused in the communities they serve. These calls have, for many years, been met with silence and inaction from NHS trusts that now state they stand in solidarity with the Black Lives Matter movement. They do this at the same time as knowingly enacting racist health policies. More broadly, the Patients Not Passports²⁴ movement has consistently called for an end to the ‘hostile environment’ in its entirety, as it has multiple intersections that damage people's health. In the face of the pandemic, this is ever more urgent.