• Andrew Tettenborn

Freebie healthcare for failed asylum-seekers in borderless Britain

Imagine you open your newspaper and read this. An organisation has called on the government to make healthcare free for anyone in Britain who has asked for asylum here, even if they have been declared ineligible for asylum.

In addition, the organisation presses for a ban on any communication between healthcare professionals and the immigration authorities. It insists on taxpayer-funded interpreters for refused asylum seekers trying to access the NHS, whatever language they speak. And it demands ensuring free and full access to all family planning services and pregnancy and maternity services, regardless of immigration status.

Oh, and a further (almost impossible) demand that making eligibility checks for healthcare services should not deter or delay people from accessing healthcare. Health, after all, is a human right even at someone else’s expense.

Nothing peculiar here, you might think. Everyone has a right to express forcible political opinions, and one’s obvious reaction is that this one probably comes from some slightly other-worldly organisation – Doctors of the World, perhaps (a body which does largely think this) – or more likely some unusually literate outgrowth of Momentum, out for the migrant vote in Middlesbrough or Sandwell.

Is health a human right even at someone else’s expense?

Well, actually no: in fact it’s the Equality and Human Rights Commission (EHCR), a government agency (in Whitehall-speak a “statutory non-departmental body”) that has come out with this pronouncement. For those interested, it is available here, and reported with reverential wonder here in the Guardian.

That these proposals are earnestly wrong-headed is fairly obvious. The demand that one state body (health) should be encouraged to adopt a stance of non-co-operation with another (immigration enforcement) does not make for good government, even if to some extent it has been accepted by a ministry that apparently regards avoiding offence as more important than effective administration.

Again, in the nature of things checking entitlement to health care takes time: the demand that there should be no delay is a coded message that health professionals should simply treat, and not worry whether those they are treating (at an expense other than their own, of course) are entitled to the service.

The reference to “traumatic pre-migratory experiences” begs a large number of questions when we are talking about refused asylum-seekers. And unless implicitly limited to asylum-seekers, the demand for “free and full access to all family planning services and pregnancy and maternity services, regardless of immigration status” is plain nutty: such a practice would encourage the perception of the UK taxpayer as the provider of free obstetrics to the world.

Of course the EHCR formally exists, not as an egalitarian think-tank, but as a protector of disadvantaged groups in the light of their legal rights. Not surprisingly, its report has recourse to a number of international documents, such as Article 12 of the UN Covenant on Economic, Social and Cultural Rights with its aspiration for everyone to enjoy the “highest attainable standard of physical and mental health”, and Article 12 of the Convention on the Elimination of Discrimination Against Women with its prohibition of discrimination in healthcare.

If these documents indeed require what the EHCR demands, then much of Europe is in trouble: secondary care for migrants is not free in the vast majority of EU countries, and in many of these the same goes for primary care too.

But do these treaties demand it? The idea that they do is based not on the text of the documents themselves, but largely on “general comments” issued by the UN Committee on Economic, Social and Cultural Rights on what it sees as the best way to interpret them.

This Committee is a politically-motivated body not known for its liking for conservative views. While these comments are regarded by some as persuasive, they are certainly not binding as a matter of international law; they are certainly a very unstable foundation for the pretensions of a government body to call for the second-guessing of the policies of an elected government.

The UN Committee on Economic, Social and Cultural Rights is a politically-motivated body not known for its liking for conservative views.

The reality is, unfortunately, that since its founding in the Blair era the EHCR has quietly morphed into a body with its own agenda and its own very pronounced views on matters a long way removed from the neutral subjects of anti-discrimination law and legal rights to equal treatment.

It has, shall we say, form in this regard. If you want recent examples, in 2017 alone it roasted the UK government for not kowtowing to UN busybodies and imposing restrictions on the press in respect of what it saw as xenophobia; dived head-first into the Brexit debate; and did much the same thing over Grenfell Tower.

Rebecca Hilsenrath, its Chief Executive, is no doubt a very conscientious and worthy woman. Her Twitter feed spits out the staple agenda of good intentions—e.g. gender pay gap, racism and MeToo#ism. Personally she has every right to say that “everyone should have access to good quality healthcare, regardless of who they are and where they come from,” or that there is a need for “keeping healthcare separate from immigration enforcement.”

But she should not be putting this view forward in a press release issued by a government department. This whole subject is something very much within the political arena, which involves very important issues of social policy. There should be no place here for a public departmental view, and certainly not for such a view that differs from that of the government in power.

The EHCR is an organisation that can do some good. But to do this it requires respect from all sides, and to be seen as an impartial arbiter rather than a pressure group with an axe to grind.

Unfortunately at present it produces too many pronouncements that resemble a Guardian or Independent op-ed, and gives the impression, deliberately or not, of being an organisation dedicated to pushing the doctrines of the smug soft Left establishment as if they were beyond controversy.

This isn’t a very promising way to run a government body if you want people to engage with it rather than dismiss it as just another tiresome pressure group.

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath)