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Over the years, migrants have asked this question repeatedly. There is clear confusion about what the Home Office mean by “no recourse to public funds” and this has often caused our clients to misperceive their rights. I will explore in this article the rights of overstayers, migrants who are subject to immigration control and those with indefinite leave to remain in the context of Public funds and NHS treatment. The first thing to note is that ‘public funds’ is quite separate from the NHS.

Public Funds

Most migrants with a visa in the United Kingdom will be familiar with the term “no recourse to public funds”.  What does this actually mean? Well, the Home Office Guidance states that “it means you will not be able to claim most benefits, tax credits or housing assistance that are paid by the state.”  There are some exceptions and ‘public funds’ does not include benefits that are based on National Insurance contributions. 

To put this into perspective, we need to think about the consequences! Where a migrant is in breach of their visa conditions, in other words, when they are claiming benefits while they are prohibited from doing so, their application to extend their visa or to be granted indefinite leave to remain is likely to be refused.

Things are quite clear for overstayers, they are not entitled to receive ‘public funds’, and for those with indefinite leave to remain, they are not restricted from obtaining government funding.  The misunderstanding is usually centred around those who have limited leave to remain and are subject to immigration control.  Where the migrant is studying or working in the United Kingdom under the Points Based System, the Rules are quite clear as they are not entitled to receive any ‘public funds’, but what about those who have a settled or British partner and children?

Migrants would not be considered as accessing ‘public funds’ if the ‘public funds’ are being received by their partner and the migrant’s partner is entitled to receive these ‘public funds’ in his/her own right. Also, where child and working tax credits are claimed by the child’s parents as a couple and one of the parents is subject to immigration control, neither parent is treated as being subject to immigration control. 

Often, this causes confusion and migrants claim benefits that they are not entitled to.  Migrants who are in the United Kingdom with leave as a partner must keep in mind that they may be required to prove that they will be maintained without recourse to ‘public funds’ as one of the requirements of their application to extend their leave and apply for settlement in the United Kingdom.      

Public Funds v NHS

It is important to separate ‘public funds’ from use of the National Health Service (NHS) and General Practitioners (GPs) as they are not considered to be ‘public funds.’   This means that someone may receive NHS treatment, but the same person may not be able to claim ‘public funds’.

Migrants with indefinite leave to remain are entitled to use the NHS for all treatments. However, the entitlement of migrants with limited leave to remain (i.e. subject to immigration control) will depend on the category of treatment they are seeking. NHS guidance distinguishes between primary care (such as seeing your GP), secondary treatment (such as attending a hospital clinic or seeing a specialist doctor or physiotherapist) and hospital treatment.  A common scenario is that a migrant, let’s call her Betty, sees her GP, that GP then refers her to a specialist hospital doctor when it is found that she needs an operation. If Betty has Indefinite leave to remain then she is entitled to receive treatment for all stages under the NHS. If Betty is a student, hence with limited leave, she can see her GP under the NHS, obtain treatment from a specialist doctor or physiotherapist under the NHS because she paid the Immigration Health Surcharge (IHS) when she applied to extend or come into the UK but any hospital treatment she receives will need to be paid for privately.

Betty in both of the above scenarios is considered to be ‘Ordinarily Resident’. However, if Betty is a visitor to the UK, she is not Ordinarily Resident’ so she will not be entitled to any NHS help. There are, however, some exceptions where secondary treatment is free, such as use of the Accident and Emergency Department and family planning services (as, for example, pregnancy related treatment). 

Overstayers are entitled to use the NHS only for primary care services, so they can see their GP but will not be able to receive NHS assistance if they need say referral to a consultant (secondary care) or an operation (hospital treatment).

On the 1^st of February 2016 the Government introduced the “Right to Rent” scheme. Given its function, it was arguably misnamed as its purpose was not to provide Tenants with “rights” to rent but to limit it. The scheme requires landlords to check prospective tenants leave to remain in the UK. Failure to do so could lead to prosecution, fine or even imprisonment. From its inception the scheme was criticised by many as a way of passing the responsibility of immigration checks to landlords with the view to promoting a “hostile environment” against illegal immigrants. Critics of the scheme have repeatedly argued that the scheme does not work and only results to discrimination. The High Court affirmed this in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the government’s Right to Rent scheme causes racial discrimination in breach of the European Convention on Human Rights. The Judge was clear and arguably damning of the scheme, stating:

“In my judgment, the answer to this issue lies in the findings I have already made in relation to causation. It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not. The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective. In my judgment, in those circumstances, the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.

… I have come to the firm conclusion that the Defendant [the Government] has failed to justify the Scheme, indeed it has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed.

However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

The Government have said that it will appeal the Decision so the scheme in its current form remains. It is disappointing that despite considerable evidence provided by JCWI and others that the scheme is discriminatory, the Government has failed to acknowledge this. They appear to adopt a “the end justifies the means” approach in that as long as a hostile environment can continue against illegal immigrants, any by-product of the scheme such as discrimination is an acceptable consequence.

Most will accept that Immigration control is crucial for any country. The Government is tasked with ensuring that an effective immigration system is in place. The Government’s power to introduce such laws must however be tempered with checks and balances and the High Court in this case has examined the effect of the scheme with reference to considerable evidence and has concluded that the “Right to Rent” scheme is discriminatory. It is baffling that the Government petulantly insists in its continuance of the scheme. It is akin to the controversial “Certificate of Approval” process that previously required couples to obtain permission to marry from the Home Office. That scheme was in force for years despite a finding by the House of Lords judgment in Baiai (30^th July 2008), that it was discriminatory. The Government finally abandoned the scheme on the 9^th of May 2011, three years after the Court’s Decision against the scheme.  I hope that the Government will not take as long to abolish the “Right to Rent” scheme which is clearly untenable in its continuance.