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Treatment Justice at last for migrants
19th May 2008

The long-running complaint that HIV treatment is not free for all migrants seems to be coming to an end.

HIV treatment is neither free nor automatic for many migrants, unlike treatment for all other sexually transmitted infections.

Aside from being immoral, and breaking an International Covenant the UK signed in 1976, refusing free treatment for HIV leads to unnecessary transmissions, because untreated people are more likely to transmit HIV than people having treatment.

Official Guidance was wrong
At the High Court in London, Mr Justice Mitting made a ruling that means that most people in the UK with HIV now have the right to free treatment. Until this ruling, some migrants (and even British Citizens who have just returned from living or working abroad) could be charged for their HIV treatment.

The effect of the Overseas Visitor Treatment rules was patchy because some hospitals policed these rules reluctantly but others with enthusiasm. In the North-West of England, we have rarely had to challenge hospital decisions to charge and were always successful.

Anyone who can show they are "ordinarily resident" has a legal right to free NHS hospital treatment. The problem is that it is very difficult for hospitals to decide who is "ordinarily resident."
The Department of Health recently made matters worse by tightening up the rules. It also issued hospitals with dodgy official guidance. George House Trust and others warned the Department about these problems.

Understandably hospital staff, who aren’t lawyers, followed the easier path of the dodgy guidance dossier rather than the legal language of the regulations.

The court case was part of a deliberate strategy within the HIV sector to assert the healthcare rights of vulnerable migrants, by challenging Department of Health policy and practice.

Government appeal
The ruling made clear that any migrant who could show they were legally here was probably ordinarily resident. Refused asylum seekers in particular were very likely ordinarily resident and therefore have a right to free hospital treatment of all kinds. The government will probably appeal to the House of Lords and, if it loses that appeal, it may then try to change the law.

Refused asylum seekers and Article 3 applicants should now only need to show form IS96 to the hospital. People lawfully here with a valid visa (such as visitors, students, workers) and intending to stay for some time, should also no longer be charged.

The people left out by the ruling are people here irregularly - people who have overstayed a visa, and those who entered the country irregularly, or who have no papers.

They are only left out because an international Convention the UK agreed in 1976 has still not been made part of UK domestic law. Article 12 of the International Covenant on Economic, Social and Cultural Rights establishes the "right to the highest attainable standard of health” which means everyone, including migrants, have the human right to free health care. However until the Covenant is made part of UK law, our judges can’t enforce such international rights.

Despite this, the Department's 2007 publication Human Rights in Health, a framework for local action, advises Trusts to follow a Human Rights approach to providing healthcare http://tinyurl.com/yq6bhn [section 1.3.a].

GP service safe for migrants too
The government is proposing to end many migrants’ right to free primary healthcare such as GP and dental services. Again the HIV and migrant sectors have strongly opposed this. This court ruling effectively blocks the government from ending migrants’ free primary health care. The government may introduce the ban it wants but it will then face another Judicial Review which it can expect to lose. The law and legal principles are the same.

Using Judicial Review by the courts to challenge national and local government misbehaviour, is common but very slow - the queue at the High Court is over a year long.