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UNHCR
Comments on Proposals to Exclude Overseas Visitors from Eligibility
to Free National Health Service Primary Medical Services
We
refer to the Department of Health’s consultation document
launched on 14 May 2004, which set out proposals to introduce charges
for overseas visitors who use primary medical services in the UK.
Responses to the consultation were invited by 13 August 2004.
UNHCR's
mandate and interest in this enquiry
1. The United Nations High Commissioner for Refugees (‘UNHCR’)
is a non-political, humanitarian organisation mandated by the United
Nations General Assembly to lead and co-ordinate international action
for the worldwide protection of refugees and resolution of refugee
problems.
2.
UNHCR understands the Department of Health’s proposal to change
the rules on the eligibility of overseas visitors to receive free
National Health Service (‘NHS’) primary medical services
and to enforce charges for primary health care services on overseas
visitors, subject to the exemptions listed in Annex B of the consultation
paper. We welcome the opportunity to comment on this proposal insofar
as it falls within our mandate.
3.
While Annex B does include ‘refugees and formal asylum seekers
whose applications have not yet been determined’ in its categories
of patients who are fully exempt from charges, it does not include
asylum seekers whose claims have been fully determined and rejected,
but who are unable to return to their countries of origin. Our comments
will be limited to the effect of this proposal on such people.
Medical
services for refugees and for asylum seekers with outstanding claims
4. UNHCR is aware of the proud history of the NHS in providing high
quality health care and recognises the work done by the NHS to benefit
refugees. UNHCR welcomes the continuing access of formal asylum
seekers to free health care and also welcomes the continued commitment
to provide free health care to those who remain in the asylum process
throughout the appeal stages. We understand that we agree in defining
“asylum-seekers” to include those who have a pending
asylum case at any level of the procedure, including judicial proceedings.
Unsuccessful
asylum seekers who are able to return
5. UNHCR also recognises that the efficient return of persons found
not to be in need of international protection is key to the international
protection system as a whole. We therefore support State’s
activities in returning asylum seekers to their originating countries
where they are found to have no need for international protection,
after due consideration of their claims in fair procedures. Such
returns should occur expeditiously wherever possible, and should
be undertaken in a humane manner, with full respect for the human
rights and dignity of the returnees [Paragraph 21c of report of
54th Session of UNHCR Executive Committee].
Unsuccessful
asylum seekers who are unable to return
6. Notwithstanding the above UNHCR would like to draw attention
to a category of persons who are deemed to be without valid asylum
claims and who have no legal status to reside in the UK, but who
remain unable to return to their countries of origin for reasons
beyond their control. UNHCR is concerned that, if implemented, these
proposals could lead to this vulnerable group of individuals being
unfairly denied health care.
7.
Examples of the circumstances in which the inability to return might
arise, are as follows:
7.1
Where conflict or severe human rights abuses persist in a country,
there are often strong grounds for non-removal until conditions
more conducive to repatriation in safety and dignity can be met.
For example UNHCR currently recommends the suspension of the return
of unsuccessful asylum seekers to Iraq, Southern Somalia and Afghanistan
– the latter whenever a deportation may put certain individuals
in a position of high vulnerability. This situation also may affect
asylum-seekers of certain nationalities who are not recognised as
refugees due to the use of restrictive recognition criteria –
especially those coming from failed States under the rule of regional
warlords and countries where there is a civil war.
7.2
Removal may be constrained by a lack of documentation and/or a refusal
by the country of origin to readmit their national. In practice,
many asylum seekers at the end of the asylum process are not quickly
removed from the UK for bureaucratic reasons, even where the individual
is prepared to co-operate fully in the returns process. UNHCR is
aware of cases where individuals wait for excessive periods of time
for their identity to be verified in order for removal to be effected.
8.
The above categories of failed asylum-seekers could find themselves
in this limbo – of having no official status in the UK, but
unable to return to their country of origin – for a lengthy
period. Such persons are not permitted to work in the UK and are
not entitled to access financial benefits, and so are unlikely to
be able to afford to pay for medical care. It is also important
to note that such people may have particular need to access health
services, due to physical and mental health problems arising as
a consequence of their situation and past experiences – for
example: past persecution in their country of origin under a previous
regime.
9.
There are other situations that may not be directly related to UNHCR’s
Mandate but may nevertheless be considered by the NHS prior to making
its decisions on services to foreign nationals in the UK [For instance,
there may be other compassionate or exceptional circumstances why
a person is temporarily unable to travel, for example because of
pregnancy or illness. Another situation may affect
unsuccessful asylum-seekers from Zimbabwe, as the UK Government
does not currently enforce removals to that country but - to our
knowledge - does not grant them any official status to remain in
the UK].
A Question of non-discrimination over fundamental human
rights
10. In UNHCR’s view, the issue touches a question of fundamental
human rights contained in Treaties to which the UK is a party, and
which the UK undertook to implement in good faith. The right to
the highest attainable standard of health is included in the Covenant
of Economic, Social and Cultural Rights (ICESCR - Art. 12, which
was elaborated by the Treaty’s Committee in its General Comment
14). The right to health is also guaranteed in other International
Instruments (the Convention on the Rights of the Child, the Convention
on the Elimination of Racial Discrimination and the Convention for
the Elimination of Discrimination Against Women). It is an established
principle of civilized nations that the right to health benefits
human beings in a State’s territory without discrimination
regarding its “nationals” or “residents”.
[The General Comment of the ICESCR Committee prescribes that among
the essential elements to be factored in the coverage of health
services is the following: “(b) Accessibility. Health facilities,
goods and services have to be accessible to everyone without discrimination,
within the jurisdiction of the State party. Accessibility has four
overlapping dimensions: Non-discrimination: health facilities, goods
and services must be accessible to all, especially the most vulnerable
or marginalized sections of the population, in law and in fact,
without discrimination on any of the prohibited grounds…”
(emphasis added)]
11.
UNHCR would therefore recommend that persons who have been finally
unsuccessful in their asylum claim, but who are unable to return
to their country of origin for circumstances beyond their control,
should not be denied access to health care, and we would be pleased
to see the inclusion of such persons in the list of ‘categories
of patients who are fully exempt’ in the mentioned Annex B.
Yours
faithfully,
UNHCR London
August 2004
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