Access to treatment

Important ruling on free access to HIV treatment for refused asylum seekers

On 11 April 2008, the High Court ruled that all refused asylum seekers who had been given ‘temporary admission’ (a Home Office IS96 form) should be considered as legally and ‘ordinarily resident’ in the UK, and therefore able to access free secondary care while they remain in the UK.  This judgment has important and immediate implications for those refused asylum seekers with a Home Office IS96 form that are in need of HIV treatment.

What does the judgment mean?

1. Hospital treatment - who now gets it for free?

Anyone who has been granted ‘temporary admission’ (a Home Office IS96 form), whether or not their asylum claim or Article 3 application has been refused.  They can demonstrate this by showing the hospital an IS96 form, which everyone receives when they first make a claim (if they are not being detained) or when they leave detention. 

Also, anyone who can show that they are lawfully in the UK and intend to stay here for a reasonable amount of time can also show that they should get treatment free of charge.  This would probably apply to someone who came here with a valid visa, and then applied to extend it or applied for leave to remain before the visa ran out.

2. Who does not get free hospital treatment?

People who have overstayed their visas and not made any further application that led to them getting an IS96 form (temporary admission), and people who are completely undocumented (those who have never presented themselves to the immigration authorities or made any application for leave to remain).

3.  GP treatment

Same as hospital treatment.  GPs no longer have any discretion as to whether to treat refused asylum seekers/Article 3 applicants or not.  GPs have to treat them as they would any other UK national.  The only people that they can decide not to treat as an NHS patient are people who have overstayed their visas and who have not put in a further application, and people who are completely undocumented. 

What should you tell your clients/service users?

As things stand, anyone who can show the hospital a Home Office IS96 form granting them temporary admission to the UK can get free hospital treatment now, even if their asylum claims were refused and they lost their appeals after getting the form.  Even if the Government successfully appeals the decision, they could get the rest of that course of treatment for free.

Anyone who would benefit from this judgment, and is being chased for money that hospitals say they owe can legitimately say to hospitals that they do not owe that money, because they should never have been charged in the first place.  If they have already paid money to hospitals, then they can claim it back.  If the hospital refuses to give it back, they can take legal action against the hospital, as they would with any unpaid debt.

Campaign for free access to HIV treatment continues

Previous to this judgment, NHS charging regulations introduced in April 2004 required refused asylum seekers and undocumented migrants to pay for secondary care, including HIV treatment. 

The National AIDS Trust has been campaigning to exempt HIV treatment and care from NHS charges regardless of residency status.  Read the campaign manifesto.  It is clear that these regulations actually prevent vulnerable people, including pregnant women, from accessing the vital treatment they need because they cannot afford the charges.  Often destitute, those unable to pay such bills have had their treatment delayed, denied, interrupted or withdrawn.  Many have been pursued aggressively by debt collectors.  Others who are in fact entitled to free treatment have had it mistakenly denied by NHS officials and clinicians confused over the regulations.  Read examples of the effects of charging on real people.

The campaign does not end with this judgment.  The Department of Health has expressed its intention to appeal against the judgement. In addition, refused asylum seekers without a Home Office IS96 form or those that are undocumented or visa overstayers are still chargeable for HIV treatment. 

Getting advice

To get advice or share your experiences related to accessing treatment please contact Joe Murray, Policy Officer, at joe.murray@nat.org.uk or on 020 7814 6756.

Key Resources:

• Campaign for Access to Free HIV Treatment and Care for All in the UK - (Aug 2007) A manifesto developed with other voluntary sector stakeholders outlining key arguments against charging for HIV services.
  
• Access to HIV Treatment and Care in the UK: Cases Related to Charging -  (Oct 2007) A collection of examples of the effects of charging on real people.
  
• Will I Have to Pay? - (June 2008) A leaflet developed in collaboration with the Terrence Higgins Trust providing advice on getting NHS sexual health and HIV services for recent migrants and those of uncertain immigration status. 
  
• The Treatment of Asylum Seekers - (Sept 2006) a response to the Joint Committee on Human Rights regarding access to treatment, dispersal, removal and wider social care issues.
  
• New Developments in HIV and Sexual Health Policy - (Dec 2004) a memorandum to the House of Commons Health Committee against charging for HIV treatment and care.
  
• Eligibility for Free HIV Treatment and Care - (Aug 2004) a response to a Department of Health consultation on eligibility of overseas visitors, including asylum seekers, to free NHS primary care.