It runs like an uneasy theme in the ethics of health care provision. How do we respond to the genuine health needs of individuals who do not have legal rights of residency and are unable to pay privately for their own health care? What obligations, if any, do we have to sick people who are here without legal status? Asylum seekers are entitled to the full panoply of NHS health care, but what of those whose claim has been refused? The debate has, at times, turned ugly. Blurred into wider questions of immigration and national identity, all nuance is lost. Health tourists, illegal immigrants and asylum seekers are bundled together into one, caricatured as a single reviled mob at the gates desperate to sack our national heritage.

And what of ex-pats and pensioners living overseas, what of their rights? Behind the tabloid headlines and the kneejerk politics lie the complex and uncomfortable stories, stories of genuine suffering and extraordinary courage, stories of people trafficking and of doubtful claims. The truth, inevitably, is complicated, compound and elusive.

Behind the bitter political debate, though, lies a genuine dilemma. Speaking very loosely, public services such as the NHS are a species of risk pooling. When we are well we contribute, via our taxes, to the public good. As a result when we or our dependents are ill, we are entitled to state support. “Free riders,” people who receive the benefits without themselves contributing can threaten the viability of the system in two obvious ways. Firstly, too many will drain the resources and the needs of those who have contributed are less likely to be met, undermining faith in the system. Secondly, if people get to benefit without contributing, faith in the system is again undermined: why should we pay where others are getting something for nothing?

What do we do though, when people are here without proper status and are in genuine need of health care? Health professionals working in a publicly funded system are accustomed to providing treatment on the basis of need. Denying care on the basis of immigration status can feel like a violation of professional ethics. And besides, isn’t there something morally special about health care? Shouldn’t the ordinary rules of entitlement be set to one side?

In part the Government’s answer to this is yes. Exercising what AR Jonsen called the rule of rescue, emergency care is provided free of charge, irrespective of status. But what of everyday care, of treatment and relief for chronic conditions? The rules are confusing. GPs have the discretion to register people for free primary care irrespective of their status. Free secondary care, however, is based on “ordinary residence,” an elusive concept of little help to health professionals.

Until recently, refused asylum seekers were not deemed ordinarily resident and were not therefore entitled to free secondary care. A recent judicial review threw this into doubt – a blanket ban was unlawful. The question of whether a refused asylum seeker was ordinarily resident would have to be assessed on the facts of each individual case. The Government is appealing the decision.

At the same time new immigration and asylum legislation is in the pipeline. The Government has signalled its intention to clarify the meaning of “ordinary residence.” Access to services are going to be limited “to those who earn it.” It feels as if a clampdown is on its way.

For many years now the British Medical Association has been calling for flexibility in relation to health care and other essential services. Flexibility means that public health risks can be managed. It also makes economic sense to intervene early before health problems require expensive emergency treatment, to say nothing of humanitarian concerns. The BMA will continue to lobby the Government during the passage of the new legislation.

In the meantime it has produced revised guidance for health professionals, outlining the current situation regarding entitlement. Overall, though it looks as if the world is becoming a harder place still for those seeking asylum.

See also:

Refused asylum seekers are entitled to free NHS care, says BMA

Julian Sheather is Deputy Head of Ethics, British Medical Association.