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Health tourism and the rights of migrants

Refugee child, SmithsonianThe Government recently announced that overseas visitors and migrants, subject to immigration control, are to be charged for using NHS accident and emergency services in England under measures announced to deter so-called ‘health tourism’. Details of the scheme are still being worked out but Ministers have said they will publish a full implementation plan in March. Painting from Flickr, under Creative Comms licence from the Smithsonian American Art Museum (americanartmuseum)

Announcing the plans, Health minister Lord Howe said HERE:

“Having a universal health service free at the point of use rightly makes us the envy of the world, but we must make sure the system is fair to the hardworking British taxpayers who fund it. We know that we need to make changes across the NHS to better identify and charge visitors and migrants. Introducing charging at primary care is the first step to achieving this …. to clamp down on the abuse of our NHS.”

As part of this clamp down, the government has also indicated it wants to boost efforts by the NHS to recoup the cost of treating patients from EEA countries—the European Union plus Norway, Liechtenstein and Iceland. The health service currently writes off about £12 million a year that could be claimed back from EEA governments, the Department of Health said.

So what are the rights of EEA migrants in terms of healthcare provision?

The right to free movement and residence within Member States
This is enshrined in Articles 21 and 45 of the Treaty on the Functioning of the European Union (TFEU) and in Article 45 of the Charter of Fundamental Rights of the European Union. This right, which includes equal treatment in the country of residence, is irrespective of the exercise by EU citizens of an economic activity and is regulated by secondary EU laws.

The right to access social security for residents is set out in Article 48 TFEU and Article 34 of the Charter which also refers to the rules set up by EU and national law to regulate entitlement to benefits. Importantly Article 48 TFEU has a so-called “emergency brake” procedure. This allows a member state that considers that a proposed legislative act would affect important aspects of its social security system, or the financial balance of that system, to request that the proposal is referred to the European Council which must decide by consensus whether to proceed.

European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory regulates the conditions according to which they can exercise their right to move and reside freely within Member States; the right of permanent residence, as well as restrictions to these rights on the grounds of public policy, public security or public health.

Directive 2004/38/EC defines both the conditions for the right of residence in another Member State for periods of more than three months, and also regulates equal treatment for access to social assistance. As laid down in the Directive, the right of residence for non-active EU citizens other than job-seekers for more than three months, but less than five years, is subject to the conditions of having sufficient resources and comprehensive sickness insurance cover.

The coordination of social security systems and access to healthcare and social benefits in the EU
Member States are free to regulate their own social security systems; however, for the past 50 years these systems have been subject to EU level coordination (and co-operation) to ensure that people have social security coverage and do not lose rights when exercising their right to free movement in the EU.

Regulation (EC) No 883/2004 (as amended by Regulation 465/2012) provides for the coordination of social security benefits including access to health care. This Regulation together with its implementing regulations contains detailed provisions to identify the Member State responsible for the provision of health care and arrangements for the reimbursement of costs between Member States.

EEA countries are required to reimburse the cost of healthcare which is provided to some categories of people for whom they are responsible when they are travelling or residing in another EEA country. For the UK these people are most often UK residents who are temporary visitors to another EEA country who use a European Health Insurance Card (EHIC) issued by the UK for medically necessary treatment where the need arises during their visit, as well as UK state pensioners and their dependents who reside elsewhere in the EEA.

The EHIC card, which every EEA country issues, entitles the holder to receive state provided healthcare whilst on a temporary visit to another EEA country on the same basis that it is provided by the host state to its own residents. This enables the holder of an EHIC to receive free or reduced cost health care depending on the health care system operating in the host state. Many UK citizens go on holiday within the EEA with the peace of mind that should they fall ill, their health needs will be taken care of via the EHIC.

In 2012/13 the UK paid a net £805 million to other EEA countries to cover the healthcare costs of those for whom it is responsible, the majority of whom were for UK state pensioners living in other EEA countries. That the UK pays out such a large sum shows just how many of its citizens benefit from these provisions. Indeed many more UK pensioners choose to live in other EEA countries than pensioners from those EEA countries who live here.

Using Spain as an example, approximately 400,000 British pensioners reside there at any one time. For a great majority of these, the fact that the UK covers their healthcare is of great benefit. It should also be noted that, had those citizens remained in this country, the UK would be meeting the costs of their NHS care in the usual way and in some Member States the average cost of healthcare can be lower.

Finally the Regulations also give the NHS the ability to seek reimbursement for the cost of health care provided to state pensioners from other EEA countries that choose to live in the UK and temporary visitors using EHICs issued by other countries.

Free movement of services and cross-border healthcare
The freedom to provide services under Article 56 of TFEU extends to those receiving the services.

Directive 2011/24/EU, implemented following a series of Court of Justice of the European Union (CJEU) judgments, including the Watts case, clarifies citizens’ rights to purchase healthcare in another Member State and to claim reimbursement from their home state subject to certain conditions.

The purpose of the Directive is to assist those patients who choose to purchase healthcare in another Member State and to ensure that it is safe and of high quality. The Directive aims to help patients benefit from improved information and better clarity on the rules that apply to reimbursement; allows health experts across Europe to share best practices on healthcare and develop standards of excellence; and allows NHS trusts and other healthcare providers to widen their sources of income by attracting European patients and by using any spare capacity in the system – particularly where they have specialist expertise – such as the diagnosis and treatment of rare diseases.

So will the government proposals have the desired effect?
It is noteworthy, given the antipathy usually expressed towards EU migration and EU law generally by the government and their acolytes, that these healthcare provisions are not part of the planned changes. No doubt this is largely linked to the fact that even Tory Ministers can see the clear benefits that Regulation 883/2004 brings to UK citizens, including, for example, people travelling to other EEA countries, students studying there, and pensioners who have moved abroad.

Regulation 883/2004, of course, also covers citizens of other EEA countries, allowing them to access healthcare in the UK and for which the UK is likewise entitled to seek reimbursement. This is part and parcel of the free movement of persons which remains one of the fundamental freedoms of the EU. However there are questions going forward about how the Regulation interacts with UK domestic provisions and entitlement to NHS care, especially around the conflict and inherent difficulty which the UK has, in operating a system based on whether an individual is ‘ordinarily resident’ in this country, as compared to the direct contribution and insurance based model pertaining to most other Member States.

The government have questioned how rigorously domestic provisions are applied. Yet the medical profession, as a whole, have expressed a significant degree of concern that any proposed changes may cost more to administer than they would ultimately raise for the NHS. And whilst the Government says it is committed to working with the NHS to increase appropriate cost recovery from EEA countries, there remains a number of legitimate concerns around the complexity of the rules, which make them difficult to apply at the frontline, and also that domestic mechanisms, to record the data necessary to claim reimbursement under Regulation 883/2004 are inadequate, hindering UK reimbursement levels.

Finally, of course there is little doubt that the culture of the NHS makes staff reluctant to press for EHIC details for instance. It remains to be seen whether the wider proposals around information checks and charging for migrants, and the possible introduction of ‘chip and pin’ facilities by hospital bedsides, will do anything to alter this ‘cultural reluctance’ or whether staff will simply view it as another government attempt to press them into acting as an arm of the UK Border Agency.

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