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).