Health Care for Migrants

Friday 3 September 2010

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In ZO (Somalia) v Secretary of State for the Home Department [2010] UKSC 36, the Supreme Court held that Council Directive 2003/9/EC ("the Reception Directive") applied to asylum-seekers who purported to make a fresh asylum claim, after the final rejection of an earlier claim. Click here for the transcript.

One of the consequences of that, is that Article 15 of the Reception Directive will require the United Kingdom to ensure that purported fresh claimants receive "necessary health care which shall include, at least, emergency care and essential treatment of illness" and that "necessary medical or other assistance [is given] to applicants who have special needs".

In the light of ZO, the Department of Health may need to reconsider its guidance dated the 2nd April 2009, called Advice for Overseas Managers etc. Click here for this document.

First, the advice given by the Department of Health, in the light of YA v Secretary of State for Health [2009] EWCA Civ 225, [2010] 1 WLR 279, as to how NHS bodies ought to judge whether it was necessary to provide treatment to a failed asylum-seeker now seems unnecessarily complex and potentially exclusionary. All failed asylum-seekers who have purported to make fresh claims are entitled to at least essential health care.Click here for a copy of the transcript of this case.

Second, the Reception Directive only entitles Member States to charge persons entitled to health care under the Directive after a process of means-testing: see Article 13. That would appear to rule out charging under the National Health Service (Charges to Overseas Visitors) Regulations 1989, in situations covered by the Reception Directive.

Third, the stance of the Department of Health, that commissioners will not reimburse providers for the cost of NHS treatment provided to chargeable persons may need to be reconsidered: the policy is explained in Advice for OverseasVisitors Managers etc and also in Implementing the overseas visitors hospital charging regulations. Click here for this document.). If failed asylum-seekers who have purported to make fresh claims cannot be charged, then NHS providers would appear to have a strong case for recovering the cost of providing for their treatment from commissioners.

It may be recollected that in February 2010 the Department of Health circulated the consultation document called Review of Access to the NHS by Foreign Nationals. Click here for this document.

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