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Healthcare is seen as a basic necessity and thus a fundamental human right. Countries unable to provide adequate healthcare to their citizens are seen as ‘third-world’ and are often zones which have been involved in decades-old conflicts; for example, Syria and The Democratic Republic of Congo. One route migrants can use to stay in the UK is discretionary leave to remain on medical grounds. However, this is a highly controversial route.
The weaponising of the NHS
Doctors are adamant that the NHS should not be weaponised to control immigration and are at pains to point out that medical staff are not border-control officers. Nevertheless, Theresa May’s policy of creating a ‘hostile environment’ for migrants means hospitals are being regularly asked for patient data. In October 2017, new rules came into force which made it a legal requirement for hospitals to check patients’ eligibility for care. If patients are not entitled to free healthcare, they are required to pay upfront for treatment.
The average charge levied for treatment is £2,600.
Healthcare professionals believe this new law will prevent pregnant women and chronically ill illegal migrants from seeking medical attention.
The human right to healthcare
According to the World Health Organisation (WHO), “the right to health must be enjoyed without discrimination on the grounds of race, age, ethnicity or any other status. Non-discrimination and equality requires states to take steps to redress any discriminatory law, practice or policy”.
Article 12 (The Right to Health) of the of the International Covenant on Economic, Social and Cultural Rights was defined by the General Comment 14 of the Committee on Economic, Social and Cultural Rights. As such, the right to health must include:
- Availability – the State must supply a sufficient quantity of healthcare services and make them available to all.
- Accessibility – healthcare must be provided on a non-discriminatory basis
- Acceptability – the healthcare provided must cater for all elements of society and in accordance with international standards of medical ethics for confidentiality and informed consent.
- Quality – all treatments used must be approved by the international scientific and medical community and should be safe effective and people-centred.
Discretionary leave to remain on Medical Grounds
Discretionary leave to remain was introduced in 2012 and allows the Secretary of State to grant the right to stay in the UK to a person whose circumstances do not fall inside the immigration rules (which prevent them from obtaining a visa). An example would be someone who has been living in the UK illegally.
According to the Home Office on discretionary leave to remain, the intention behind the policy is to “maintain a firm, but fair and efficient immigration system that generally requires those who do not meet the rules to leave the UK, but carefully considers exceptional and compassionate individual circumstances that may justify leave on a discretionary basis”.
There is nothing warm and fuzzy about the discretionary leave to remain policy. The threshold is exceptionally high, and applicants are likely to require expert advice from a London-based immigration lawyer to ensure they get the best result.
Under Article 3 of the European Convention on Human Rights, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
A claim for discretionary leave to remain may be granted if an applicants medical condition is so serious, that returning them to their country of origin would amount to a breach of Article 3 due to the unavailability of medical treatment.
The case of GS (India) & Ors v The Secretary of State for the Home Department  EWCA Civ 40 illustrates how hard it is to obtain discretionary leave to remain on medical grounds.
In this case, the appellants were all suffering from an advanced disease (five from kidney disease and one from HIV). One of the appellants was also a suicide risk. Four of the six were overstayers.
There was no argument that if the appellants were returned to their home country, they were all at risk of early death (some within 2-3 weeks of return) as the treatment they needed was either unaffordable or not available. However, the Secretary of State (at the time, Theresa May) made orders to remove the patients from the country.
The Court of Appeal referred to the European Court of Human Rights' (ECtHR) decisions in D v UK 24 EHRR 423 where it was held that although under normal circumstances, illegal immigrants could not benefit from medical treatment, if Article 3 would be breached by removing them from the country, an exception should be made.
The question for the Court of Appeal in GS (India) was whether the exception was limited to deathbed cases.
In N v UK (2008) 47 EHRR 39, the ECtHR stated that the exception laid out in D regarding discretionary leave to remain applied because D was critically close to death, could not be certain of any healthcare in his home country and had no family or friends who he could rely on to provide him with food, shelter and social support.
D’s condition was already incurable; as Lord Nicholls put it, “there was no question of imposing any such obligation [to provide medical care] on the United Kingdom. D was dying, and beyond the reach of medical treatment then available”. The key principle in D was not that removal would cause or accelerate his death –– but that he would die in inhumane and degrading conditions.
The appellants in GS (India) were not dying. The fact that they would die swiftly without dialysis did not mean they meet the threshold laid out in D.
The decision in GS (India) drives home how difficult it is for applicants to be granted discretionary leave to remain on medical grounds. It also highlights that morals and the law are very separate concepts, something that can be difficult for the general public to stomach.
It is an unfortunate fact that the UK can and will remove people from the country, even if that removal means the migrant will die shortly upon return to their country of origin. Therefore, if you wish to apply for discretionary leave to remain on medical grounds, it is imperative you seek expert legal advice as soon as possible.
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Posted on: Tuesday, 30 January, 2018