Failed Asylum Seekers and the NHS

The Court of Appeal has ruled today (Monday) that those who have not resided lawfully in the UK for at least a year are not entitled to receive free health service treatment.

Lord Justice Ward said: “Failed asylum seekers ought not to be here.  They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return.  In some cases, like the unfortunate YA, that return may be a long way off. The result may be most unfortunate for those in ill-health like YA for they may now be at the mercy of the hospitals’ discretion whether to treat them or not.”

Righty-ho.  I just have a couple of queries before I accept that. In the first place, by what standard ought failed asylum seekers not be here?  Because a lot of them are here simply because they haven’t yet left (if you get my drift), and they obviously weren’t failed asylum seekers when they arrived.  So, while they’re waiting to get back to their poverty and fear the land of milk and honey that they inexplicably left, the fact that they’re in the country has less to do with them than with us and our inefficiency.  And that seems like a poor reason to deny someone healthcare – and yet this seems to be at the core of Ward’s reasoning. 

Second, his use of the words “ought” and “should” is curious, since – as I hinted just now – it seems to indicate that the permissibility of their coming here is something that depends upon whether their application was successful.  That’s very strange, not least because it gives those who’re supposed to decide on asylum applications godlike powers to determine the validity of an application by fiat.

It’s also a red herring when it comes to NHS treatment.  Imagine that, one night, someone tries to mug you.  However, it’s icy, and your would-be assailant slips and cuts himslef badly.  One would hope that someone – if not you, then some representative of the society to which you belong – would call for medical help.  Of course, he should not have been doing what he was doing – attempting to nick your wallet – and he would not be injured but for the attempt.  But that’s quite aside from the fact that he needs help now; and we can do something about his criminality later.  Something like that seems to apply to asylum seekers – even if we concede to the red-faced little Englander that they should not be here, it’s not obvious what this has to do with their entitlements in time of need.

What of those putative entitlements, though?  Here, Ward is interesting – because it strikes me as plausible to say that even if someone has no right to treatment, we still have a duty to provide it.  To see why, consider the case of the needy newborn.  It’s hard to see why a “native” newborn would have any rights that are not possessed by an immigrant.  It certainly won’t have earned its keep, so any rights it does have are either based on the fact that it’s human (which is a status shared by the immigrant) or native (which, absent any further explanation, strikes me as a morally flimsy, not to say question-begging, sort of predicate).  Indeed, the immigrant’ll probably earn his keep a lot sooner than a sick child – and, of course, the immigrant wants to be here, unlike the baby, who’s a citizen simply by virtue of the geographical location of someone else’s genitalia.

Where was I?  Oh, yes.  The point is that treating the baby seems to have more to do with our duties to it (qua someone in need, or whatever) than with its rights – or else to do with some account of virtue on our part (which amounts to the same sort of thing in this context).  And, if that goes through, then the same applies to the immigrant, legal or not.

Call me a misty-eyed cosmopolitan if you want – why, yes… yes I am – but even if a person has no right to NHS treatment, I do tend to think that, where possible, we ought to provide it; or, at the very least, we may still have a good moral reason to do so.  I’ve argued for this (badly) elsewhere, so won’t rehearse the point here.  Of course – there might be a pragmatic problem with health tourism.  But that simply seems to speak to the scope of our duties: they’re much wider than we might expect, and they sure as Hell don’t stop at the nearest customs post.  (There’s nothing startlingly original about that thought: it’s the sort of claim that Peters Singer and Unger have been making for ages.)  But bear this in mind, too: people don’t migrate unless they feel they have to.  It’s a lot of hassle.  The ill are even less likely to do so.  So I wonder wheather health tourism really is likely to be as big a problem as all that – and, if it is, then there would seem to be at least some reason to spend a lot more on foreign aid so that people don’t feel they have to migrate.  That would seem to be the decent thing.

One other thing:  There was a time when the NHS’ website proclaimed that healthcare was a basic human right.  That would obviously fly in the face of this ruling – and, anyway, that’s not what it says now.

What it does say is that

The NHS was born out of a long-held ideal that good healthcare should be available to all, regardless of wealth. At its launch by the then minister of health, Aneurin Bevan, on July 5 1948, it had at its heart three core principles:

– that it meet the needs of everyone,

– that it be free at the point of delivery, and

– that it be based on clinical need, not ability to pay.

These three principles have guided the development of the NHS over more than half a century and remain. However, in July 2000, a full-scale modernisation programme was launched and new principles added.

There’s nothing in the original statement about providing health care to those who’re in the country legally, regardless of wealth.  Rather, the thought seems to be that healthcare should be available to all, and here we are doing our bit to realise that ideal.  Neither does adding new principles in the last decade do anything to militate against that.  That is to say: even the NHS thinks that Ward is wrong.


Sorry.  I do seem to have gone off on one.  Again.