Legal victory against Government’s hostile environment

12 November 2018

A backroom deal allowing the Home Office to request patient data from the NHS to target people for deportation has been scrapped following a legal challenge.

The agreement gave the Home Office access to confidential patient information to aid immigration enforcement. It was written in secret before being published in January 2017.

Migrants’ Rights Network (MRN), represented Liberty and Matrix Chambers, took legal action against the arrangement because it violated patient confidentiality, discriminated against non-British patients and left seriously unwell people fearful of seeking medical care.

Under the pressure of the legal challenge, the Government announced in May 2018 that the data-sharing deal would be suspended – but remain in place.

NHS Digital has now confirmed to the court it will completely withdraw the data-sharing deal made between itself, the Department of Health and the Home Office.

Rita Chadha, Interim Director of Migrants’ Rights Network, said: “On the 70th Anniversary of the NHS it is absolutely vital that our great British institutions uphold the best British values. The right to privacy and the access to health care, is a right that many of us take for granted, sadly this has not been the case of health services for migrants. We are delighted that the Government is starting to dismantle the hostile environment by conceding that deterring people from accessing health services is cruel, inhumane and ultimately more costly” 

Lara ten Caten, Lawyer for Liberty said: “This secret data-sharing deal undermined every principle our health service is built on, showing contempt for confidentiality and forcing people to choose between self-medicating and detention and possible deportation.

“This stand-down by the government is a huge victory for everyone who believes we should be able to access healthcare safely – and particularly for doctors and nurses who had become complicit in the Government’s hostile environment against their will. This triumph shows that if we stand up to xenophobic policies, we can and will dismantle them.”

Background

The memorandum of understanding between the Department of Health, NHS Digital and the Home Office was created in November 2016. It allowed the Home Office to request access to certain non-clinical information including patients’ last known address.

It was drawn up in secret, without consulting NHS staff, medical organisations or the public – but came to prominence in January 2017 when raised by former head of NHS Digital, Kingsley Manning.

MRN and Liberty – instructing Guy Vassall-Adams QC, Sarah Hannett and Aidan Wills of Matrix Chambers who worked pro bono – started legal proceedings against the agreement with assistance from the National Aids Trust and Doctors of the World.

They were granted permission to challenge it by the High Court in March 2018. MRN argued the data-sharing arrangement:

  • violated patients’ right to privacy under the Human Rights Act
  • did not pass the considerable public interest test required to breach the doctor-patient relationship
  • left migrants too scared to access healthcare services they are entitled to
  • discriminated against non-British patients

Under pressure to withdraw the arrangement, the Government announced in May 2018 that it would be suspended, and would only apply to people who had committed serious crimes. The legal challenge was placed on hold pending amendments to the deal.

On Friday 2 November, NHS Digital confirmed the deal would be completely withdrawn.