Immigration, the hostile environment, and the NHS

I don’t usually write off-the-cuff posts in response to specific news stories, but it’s not easy to ignore recent reports of Commonwealth citizens being refused NHS treatment after having lived most of their lives in the UK.

In the story told in today’s Guardian, a man who is said to have lived in London since at least 1974, and who came to the UK as a teenager, has been refused NHS treatment for cancer after he was unable to produce evidence of his citizenship or immigration status in the UK.

Reactions have included a fair dose of suspicion: how could it be that a person could have lived in the UK for such a long time, working and paying taxes, and yet not have proof of their status?

In order to understand the problem that is now facing large numbers of people who came to the UK as children, one of the things that is relevant is the way immigration laws have changed since that time. There are other important factors as well, not least issues of race and class, but I will confine my comments to how the law works.

1. The “hostile environment” is part of the UK’s immigration laws.

“The aim is to create here in Britain a really hostile environment for illegal migration,” said Theresa May in 2012. Since then, laws have been introduced to force landlords, banks and the NHS to act as de facto immigration officers, in checking the immigration documents of people they provide services to.

2. Checks are focused on documents.

A lack of documentation does not automatically mean that you are “illegal”. However, the hostile environment encourages service providers to use this assumption as their starting point.

The number of documents that are acceptable has reduced over time. For example, the documents an employer can accept as proof of a right to work are set out in this document. An indefinite leave to remain (“ILR”) stamp that is in an expired passport is no longer acceptable: the holder must apply for a Biometric Residence Permit to prove their status, sometimes many years after they were granted ILR.

Many people are entitled to live and work in the UK permanently, but may have no acceptable documentation to prove this. This group includes EEA nationals and their family members (because applying for EEA residence documentation is not a legal requirement), and also people who are British citizens but don’t have a passport.

Many others are eligible to apply for citizenship or leave to remain in the UK, but don’ t have the financial resources to do this.

3. Immigration and citizenship applications are expensive.

It currently costs £993 to apply for leave to remain in the UK based on long residence. Applicants must also pay the Immigration Health Surcharge, which is currently £500. Immigration application fees now increase annually, and have rocketed in recent years, and the Government proposes to double the Immigration Health Surcharge this year.

Even the application fee for a Biometric Residence Permit (for people who already have ILR) is £237.

4. Immigration law is hard.

A lot of people who have lived in the UK since they were children simply do not know what the basis of their stay in the UK might be. Some might be British citizens already, or have a right to register as British. Some might have ILR. Others will meet the requirements of the Immigration Rules to be granted leave to remain on the basis of their long residence in the UK.

The law around British citizenship and immigration is complicated, and becoming more so. The Immigration Rules change frequently. It can be difficult, if not impossible, to work out your rights without legal advice.

If you need to gather evidence about how long you have lived in the UK, you will also need determination and resilience to approach different organisations to find out what information they hold about you. You might need to make a “subject access request” under the Data Protection Act to get your records from HMRC, or from the Home Office. Your records might be incomplete, or wrong.

Legal advice is expensive, and there is no legal aid available for making an immigration or citizenship application.

5. The hostile environment encourages refusal

The complexity of the law, and the harshness of the penalties for non-compliance, invite a system where service-providers, including the NHS, adopt a “computer says no” approach to determining access.

They are not asking whether you are entitled to receive a particular service, or whether you actually have a right to work in the UK. They are only asking whether you have the documents on their list.

And once you lose one battle, you could lose them all.

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