Immigration Bill

Baroness Meacher Excerpts

Wednesday 12th March 2014 Lords Chamber

Moved by

[Baroness Meacher]

62: After Clause 33, insert the following new Clause—
“Domestic abuse and female genital mutilation
No charge may be imposed for health services—(a) relating to injuries sustained as a result of domestic abuse as defined in Home Office Circular 003/2013 “New government domestic violence and abuse definition”, or(b) relating to injuries sustained as a result of female genital mutilation as defined in the Female Genital Mutilation Act 2003.”

[Baroness Meacher (CB)]

In moving Amendment 62, I shall speak also to Amendment 62A. The purpose of Amendment 62 is to ensure that treatment for any injury resulting from domestic abuse or female genital mutilation is exempted from NHS charges even if the victim does not have permanent leave to remain, or indeed if her immigration status is not clear. I should explain at the outset that these are probing amendments and I understand from the Minister that these matters will be dealt with by the Department of Health in regulations. Having said that, this amendment provides an opportunity for this House to try to influence those regulations. I think that I am right that there will be no further opportunity to do that.

Clause 34 defines for the first time the term “ordinarily resident”. If the person is not ordinarily resident they may be charged for health treatment. If they have paid the surcharge they should be covered for health services but many other people are already living in this country—I understand in the realm of about half a million—who have not paid the surcharge and are eligible for NHS charges. Further, Clause 34 brings ordinary residents into line with permanent residents. That means that instead of being here with a visa for a settled purpose such as a job, a university course or to reunite with a spouse for a minimum of one year, an immigrant will need to be here for a minimum of five years in most cases before they are fully covered for healthcare. This is why Amendment 62 is important and relevant to health charges, as I understand it.

In his letter of 12 March, the noble Lord, Lord Taylor, said that short-term visitors and those without lawful immigration status will,

“continue to be liable to pay overseas visitor charges for secondary care treatment under NHS regulations”.

This is similar to the letter from the Minister for health quality, who said that,

“illegal non-EEA migrants and short-term visitors (under 6 months) will continue to be liable to NHS treatment charges as they are now”.

I am told that this is not precisely the case, as the National AIDS Trust’s excellent briefing points out. In fact, the Government plan to introduce new charges for primary care, apart from GP and nurse consultations, and for A&E services for this group and for any migrant who cannot show that they have paid the levy. The need to assess patient entitlement in primary care or A&E would be an unhelpful distraction in an emergency situation. This might be done after someone receives treatment—but that, too, is an alarming position for someone who may have little or no money.

In his subsequent note and his latest briefing, the Minister gave assurances about a number of vulnerable groups who will not be subject to the surcharge or charges for treatment under the NHS charging regulations. There is no mention of the victims of domestic violence or FGM in relation to either. Do the Minister and his colleague, the Minister for Health, intend to exclude these two groups from the surcharge and, in the case of those already here without permanent residence, from NHS charges? If not, it is a matter of great concern that the moral and humanitarian case previously accepted concerning these groups appears to have been set aside.

As to the practical difficulties in determining who the exemptions for domestic abuse and FGM would apply to, I understand that medical checks would be needed if these groups are to be exempt from the surcharge. I appreciate that could be problematic in the circumstances, but in the case of NHS charges for failed asylum seekers, irregular or undocumented migrants, short-term visitors and others without permanent residence, does the Minister not agree that if a patient in any of these groups has been domestically abused or damaged by FGM, they should not be charged for treatment? It would be helpful to have clarification on this point on the Floor of the House, if the Minister is able to give it, albeit that such provisions would ultimately be made in Department of Health regulations.

If irregular migrants and refused asylum seekers who would not have paid the surcharge cannot access primary care services, apart from GP and nurse consultations to address comparatively minor health problems, they will eventually present elsewhere—probably at an A&E department—at much greater cost, as I referred to in relation to an earlier amendment.

A different but important point is whether the NHS will be expected to report back to the Home Office if a patient’s migration status requires them to be charged for NHS services. There is a concern about this in view of the comment of the Home Office Permanent Secretary to the Home Affairs Select Committee that the Home Office intends,

“to improve its radar screen into the NHS”.

I find that rather chilling. If it became known that a visit to the doctor could lead to a report to the Home Office, people could be deterred from seeking healthcare. Can the Minister assure the House that this will not be the case?

The Government have previously recognised the important role of the NHS in identifying victims of abuse and helping them to recognise, consider and exercise their option to escape from that abuse. Also, in the case of FGM—where we have not had a single prosecution—the NHS is seen as probably the best hope of identifying perpetrators and providing evidence to support the prosecution case. I look forward to hearing the Minister’s view on that.

On Amendment 62A, the Government have agreed that no charge will be made for health services to victims of human trafficking. I am dealing with this issue separately because, in a sense, these people are in a different situation. The aim of the amendment is to put this commitment in the Bill and to require the Government to produce a strategy and procedures to ensure that the victims of human trafficking are promptly and effectively identified for the purposes of the clause. This is a probing amendment which I hope the Minister can endorse, thus assuring the House that there will be regulations in place to achieve its aims so that victims receive the necessary medical treatment. The UK would thus satisfy our international obligations.

According to the Catholic Bishops’ Conference, the UK Human Trafficking Centre shows that more than half—54%—of trafficking victims were not recorded by the national referral mechanism in 2011. UKHTC notes that people who have been trafficked are often treated as irregular or illegal migrants. They may, of course, have been given false, stolen or genuine but fraudulently obtained identity documents. They will most likely then be treated as immigration offenders despite not acting under their own volition. This is quite understandable but it will need attention to avoid this kind of thing happening.

As the Bill is currently worded, these victims would not be exempt from the charges for health services if they are in one of these obscure groups. Also understandably, people who have been trafficked and coerced into criminal activities are often treated as offenders rather than victims. They are unlikely to benefit from exemption from health charges. A 2013 report by Anti-Slavery International highlighted a lack of awareness of trafficking indicators among authorities. If these victims are not identified, they are likely to get a criminal record, go missing, be deported and be retrafficked. They become victims a second time round.

All this will increase the fear of victims and their suspicion of the authorities. Help with later investigations is less likely to be forthcoming. At the moment, the authorities rely on those who are trafficked to disclose their status quickly or face detention—and, for obvious reasons, often that does not happen. If not identified immediately on arrival, trafficking victims are unlikely to be identified subsequently, and hence the importance of subsection (2) of the amendment. There is a need for,

“a strategy and procedures to ensure that victims of human trafficking are promptly and effectively identified”.

We are particularly concerned about trafficked children. I understand that at the moment social workers receive no mandatory training in identifying a trafficked child. We know that in the context of the draft Modern Slavery Bill there is a commitment to roll out specialist training and other measures. Can the Minister give the Committee a commitment that rigorous enforcement of health charges will not be introduced until the safeguards associated with the Modern Slavery Bill are rolled out?

Let us get things in the right order. Does the Minister agree that before the planned safeguards are introduced, they will be put before the modern slavery commissioner, who is to be appointed under the modern slavery legislation? Indeed, to clarify these matters, can he provide the Committee with information about the planned timing of the introduction of the new enforcement rules for health charges and of the implementation of proposals in relation to the Modern Slavery Bill? I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, my noble friend Lady Meacher has introduced this group of amendments with great clarity. I have added my name to Amendment 62 and I will speak to Amendment 64. Other Peers who have added their name send their apologies for not speaking at this late hour. I do not want to add much more to what has been said about domestic abuse and female genital mutilation except to say that I have a major concern as to how this will actually work in practice unless these groups are exempt.

What happens if a girl comes into the country, her status is not established, and she has infected wounds? What happens to the girl who has been mutilated and has urinary and voiding difficulties or suffers chronic pain? What happens during pregnancy, when delivery can be incredibly complicated? If it is not properly managed, a woman may literally burst because scar tissue is not elastic. We recognise FGM as an absolutely awful form of abuse and it is shameful that there have not been prosecutions already. If we put these women into the charging category, we will almost reverse the message we have sent to society about this terrible act.

The other problem arises with domestic abuse. If a woman arrives at A&E with severe facial injuries including fractures to the bones of her face or her chest wall, they may be life-threatening. If her ribs have been stoved in, it may be a life-threatening injury such as a pneumothorax and treatment will have to begin straightaway. Emergency service personnel are going to be put into a terribly difficult position. Another problem is that, in the societies from which many of these women come, sadly they are not afforded the rights they have in our society, and they are not given the respect they deserve. I am fearful that there may be a tendency to blame the woman if attempts to stay fail because she is a burden on the man, thus making it more difficult for him to stay.

Amendment 64 is about people who are released from detention. Currently, people can receive treatment while they are being held in an immigration detention centre and the course of treatment will be ongoing when they leave, but this may not be the case in the future. The consequences will be particularly acute in the area of mental health. It is well documented that the experience of an immigration detention centre is damaging to the mental health of many detainees. Without ongoing support, those mental health problems will be exacerbated rather than ameliorated at the point of release. The problem we are faced with is where to set the boundary and how it will actually be implemented.

These are probing amendments, but when regulations come before the House we will not be able to amend them. We will be faced with either accepting or rejecting them. That is why we need to tease out these issues very carefully at this stage.

--- Later in debate ---

[Baroness Meacher]

I am sorry to interrupt the Minister. He understandably said that this was a matter for the Department of Health and therefore not really appropriate for discussion here. Can he assure the Committee that we will therefore have another opportunity to influence the design of these regulations, which will indeed determine whether people suffering with FGM, domestic violence and so forth will be excluded from health charges or not? That is a matter of great concern to many of us. If we cannot discuss it here, will there be another opportunity?

[Lord Taylor of Holbeach]

That is why I am going to try to address some of these matters. It is right to seek to do so, allowing for the limitations of my knowledge in this area, which I hope that noble Lords will understand.

This House has a good reputation for debating these sorts of things not, if I may say so, through the statutory instrument process so much as generally. I am absolutely certain that my noble friend Lord Howe would be quite prepared to come at a suitable point during the consultation to discuss the basis of changes that would be made. I am sure that I am not losing a friend for life by committing him to do just that.

As if to show that I need to brush up a little bit, apparently I may not have said, through mis-speaking or a slip of the tongue, that the Home Secretary announced the review of the NRM. I thought that I had implied that, but if I had not, I should have done so. Let us hope that I do not fall out with another friend for not crediting the Home Secretary.

The noble Baroness, Lady Meacher, asked about training for the enforcement of new NHS rules, and also about the Modern Slavery Bill which, as noble Lords know, is in pre-legislative scrutiny. The Department of Health will publish its implementation plan on the health service rules during the course of this year. The Modern Slavery Bill will be a fourth Session measure. I must not anticipate the Queen’s Speech, but the fact that that Bill is going through pre-legislative scrutiny rather suggests that it will be in the fourth Session legislation.

The noble Baroness, Lady Finlay, asked about a victim of FGM who has infected wounds. Under the NHS charging regulations and policy, immediate necessary treatment is not held up because of charging. I think that the noble Baroness has enough experience of how the health service operates charging principles, and I do not think that that is likely to change. GP care is not charged for, as I have said. The Department of Health is reviewing provisions for vulnerable individuals under these NHS regulations.

The noble Baroness asked why we were planning to charge migrants for accident and emergency services. Surcharge payers will obviously not have to pay for A&E services. The Department of Health has indicated that there is a good case for introducing overseas visitor charges for A&E, for those short-term visitors and illegal migrants who do not pay the surcharge. It is giving this detailed consideration, but will not make any changes unless it is confident that the new systems will work well without compromising rapid access to emergency care for those in immediate or urgent need, which will never be withheld or delayed pending payment. However, as I said, that is not a matter for the Bill. It is part of the review into regulations which is going on at the moment.

My noble friend Lady Cumberlege asked whether those exempted from the charges will be exempted from NHS charges. Our policy intention is that those who are exempt from the surcharge will also be exempt from subsequent National Health Service charging for health services under NHS regulations. However, obviously they will be liable for dentistry; as I mentioned before, at the moment that is not free other than in exceptional cases.

Under the Bill it is possible for surcharge payers to be charged for certain expensive discretionary treatments —I think we have discussed that already. However, we have made it clear that we intend that no such additional charges will apply when the surcharge is introduced. The Department of Health has made it clear that it would consider those in the future only in the event of any exceptional and compelling specific justification for health purposes, and, as I have already said, any changes would need to be put before Parliament.

My noble friend welcomed the exemptions, but those refused asylum will face charges, as will most victims of trafficking who are not recognised through the national referral mechanism. I emphasise to my noble friend that refused asylum seekers will not pay a surcharge. Health charging for refused asylum seekers is a matter for the Department of Health and the devolved health administrations within its remit. We have already confirmed that trafficking victims will not have to pay the surcharge.

The NRM is the only process by which an individual can be formally identified as a victim of trafficking and matched with appropriate support. Someone who has not been identified as a victim through the NRM and who is an illegal migrant or visitor would not be covered by the exemption for NHS charging under the existing regime. However, the NHS can write off NHS debts if individuals are subsequently identified as victims of trafficking, so there is a retrospective exemption in that regard.

The Department of Health has committed to give further thought to strengthening exemptions in the current NHS charging regulations for vulnerable groups, including victims of trafficking. We want to make sure that the NRM works effectively, which is why the Home Secretary has commissioned the review.

My noble friend asked whether those who come on a visa, pay the levy—or the surcharge, as it is properly called—and are later refused an extension will still get free NHS treatment while waiting for an administrative review decision, and asked about a period for which the paid levy has expired. This is about people and their leave to remain. Those individuals will continue to receive free NHS treatment as part of the conditions of their extant leave. Where individuals had leave, alongside which they paid the surcharge when they applied for an extension and applied for an administrative review within the specified time limit for doing so, their leave will be extended on the same conditions under Section 3C of the Immigration Act 1971 until their administrative review is decided.

My noble friend asked what would happen if their review is refused and they bring a human rights appeal. Once an administrative review is refused a migrant will be liable for NHS overseas visitor charging unless they fall under one of the exemptions set out in NHS charging regulations. That will be commensurate with their immigration status.

A number of noble Lords were concerned about GP consultations being free—I think that that is widely understood—but what about treatment? We intend for surcharge payers to receive most treatment free, as would any other UK citizen or person with indefinite leave to remain. We have made that clear in all the responses that I have given. They will be charged only for services for which permanent residents are also charged. As part of its work to reform the charging regime in England, the Department of Health has signalled an intent to extend charging for short-term visitors and illegal migrants to some primary care services, excluding GP consultations. It is carrying out a detailed analysis to inform decisions in this area, and any agreed changes will be put to Parliament.

I was asked by my noble friend Lady Cumberlege to give an assurance that the Home Office would not be permitted to use access to healthcare as a means for it to identify and take action against those subject to immigration controls. Healthcare staff are not routinely required to inform the Home Office on issues to do with individuals’ immigration status, and there is no plan to change this. However, there are circumstances where it is appropriate for the NHS to pass information to the Home Office, such as for enforcing the NHS debtors rule, which is a current rule under which migrants who have run up an unpaid debt of £1,000 or more are not given permission to enter the UK while the debt remains unpaid.

Finally, I hope that I have answered the questions posed by my noble friend Lady Barker on mental health and such matters. She made a valuable contribution to the debate.

I turn to the challenges presented by the noble Baroness, Lady Smith, who asked, “What is success?” Success might be the £2 billion surcharge income for the NHS, which is a large sum of money even in a health service budget running to several hundred thousand million pounds. An additional £500 million will be recovered in treatment charges each year through better administration, plus the surcharge, and vulnerable groups will be protected and treated. Part of the consideration of the NHS review and the provisions of the Bill are to ensure that vulnerable groups are protected. There is no adverse impact on public health, and there is a fairer set of rules and arrangements, which command public support. Those are the basic challenges that face us in seeking to reform charging within the health service.

I reiterate that the introduction of the surcharge in the Bill will give those who are obliged to pay it—and they are obliged to pay it—the peace of mind that they will receive comprehensive NHS treatment when needed. But charging for short-term visitors and illegal migrants remains the responsibility of the Department of Health, and it is not dealt with in the context of this Bill.

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[Lord Taylor of Holbeach]

I give that commitment. I will, of course, write on that. I will also go through the debate as other questions may have not have been answered, for which I apologise. The noble Baroness, Lady Finlay, nods, so I clearly forgot to answer one of hers. However, I will go through the debate and answer all the questions as best I can. Indeed, my officials will talk to officials at the Department of Health as some of these matters are the responsibility of that department, as we have already discussed. I thank the noble Baroness, Lady Barker, for her kind words.

[Baroness Meacher]

My Lords, I thank the Minister very much for his thoughtful response. He was able to give us some reassurance on some points. I think that there are still a lot of gaps, but I am sure that the Minister will respond to some of the points in writing. I am very grateful to him for his kind offer in regard to his colleague, the noble Earl, Lord Howe, meeting us. I assume I am right in saying that the Minister’s office will be in touch with the office of the noble Earl, Lord Howe, to set up such a meeting because I think that it is only in that forum that we can achieve clarity about some of the most important and concerning issues to do with health charges and these vulnerable groups. As the noble Baroness, Lady Smith, said, we are talking about the victims of criminal offences.

There is much to thank the Minister for, but we will have to read the debate carefully and think about Report. With that, I beg leave to withdraw the amendment.

Amendment 62 withdrawn.