Health care and persons subject to immigration control
18.23.6The starting point is that NHS care is ‘free of charge’ at the point of delivery, except where a charge is expressly provided (eg in relation to certain prescriptions).
1Section 1(3) of the National Health Service Act 2006. There is however provision for charging ‘overseas visitors’. The current statutory machinery can be found here:
•section 175 of the National Health Service Act 2006;
•The National Health Service (Charges to Overseas Visitors) Regulations 2015;
•Guidance on implementing the overseas visitor hospital charging regulations 2015 (updated on the 6 April 2016).
2www.gov.uk/government/uploads/system/uploads/attachment_data/file/418634/Implementing_overseas_charging_regulations_2015.pdf. 18.23.7Some persons who are not ordinarily resident in the UK are liable to be charged for certain NHS secondary care services
3Primary care services, be they medical, dental or ophthalmic services, are not currently within the scope of the charging scheme (by virtue of regulation 2 of the National Health Service (Charges to Overseas Visitors) Regulations 2015). although, if they need urgent or immediately necessary treatment, that must be provided without up-front payment. The key issues are, therefore:
•who is not ordinarily resident in the UK for these purposes?
•which persons, not ordinarily resident in the UK, are liable to/exempted from charging?
•which services are liable to/exempt from charging?
•what happens when urgent or immediately necessary treatment is needed?
18.23.830The Executive Summary of the Guidance provides a useful overview and, in particular, identifies the fundamental principle based on ordinary residence as follows:
1. A person will be ‘ordinarily resident of a trust’ in the UK when that residence is lawful, adopted, voluntary, and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration. Nationals of countries outside the European Economic Area (EEA) must also have indefinite leave to remain in the UK in order to be ordinarily resident here. A person who is ordinarily resident in the UK must not be charged for NHS hospital services.
2. The Charging Regulations place a legal obligation on NHS trusts, NHS foundation trusts and Local Authorities in the exercise of public health functions1 in England, to establish whether a person is an overseas visitor to whom charges apply, or whether they are exempt from charges. When charges apply, a relevant NHS body must make and recover charges from the person liable to pay for the NHS services provided to the overseas visitor. A list of exempt services and exempt categories of overseas visitor is provided in Chapter 1, with a more detailed list of exempt services at Chapter 4.
18.23.9The Guidance suggests a four-step decision-making process
4See Chapter 2 of the Guidance to identify and charge chargeable overseas visitors, which is summarised as follows:
•the NHS body should first determine whether the patient is insured by another member EEA member state. This is because the UK is able to recover the cost of treatment provided to any patient who is insured by another EEA country, even if the patient is ordinarily resident in the UK or exempt under another category;
•the NHS body should determine if the patient is ordinarily resident in the UK. If the patient is ordinarily resident in the UK, the process ends here; the patient should not be charged;
•the NHS body should determine if the patient who is not ordinarily resident in the UK or insured by another EEA state is covered by one of the exemptions in the Regulations – exempt services or exempt overseas visitors;
•the NHS body should make and recover charges from chargeable overseas visitors. This stage involves a determination of the urgency of the treatment, which dictates whether full payment or a deposit equivalent to the full estimated cost of care should be obtained in advance of treatment or whether payment will be pursued after the treatment.
Ordinary Residence
18.23.10Section 175 of the National Health Service Act 2006 makes provision for regulations to require prescribed persons who are not ordinarily resident in the UK to pay charges for prescribed NHS services:
Charges in respect of non-residents
175 (1) Regulations may provide for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2).
(2)The services are such services as may be prescribed which are–
(a)provided under this Act, and
(b)provided in respect of such persons not ordinarily resident in Great Britain as may be prescribed.
(3)Regulations under this section may provide that the charges may be made only in such cases as may be determined in accordance with the regulations.
18.23.11As from the 6 April 2015, section 39 of the Immigration Act 2014 has defined what it means to be not ordinarily resident for NHS purposes:
Related provision: charges for health services
39 (1) A reference in the NHS charging provisions to persons not ordinarily resident in Great Britain or persons not ordinarily resident in Northern Ireland includes (without prejudice to the generality of that reference) a reference to‒
(a)persons who require leave to enter or remain in the United Kingdom but do not have it, and
(b)persons who have leave to enter or remain in the United Kingdom for a limited period.
(2)The ‘NHS charging provisions’ are‒
(a)section 175 of the National Health Service Act 2006 (charges in respect of persons not ordinarily resident in Great Britain);
(b)section 124 of the National Health Service (Wales) Act 2006 (charges in respect of persons not ordinarily resident in Great Britain);
(c)section 98 of the National Health Service (Scotland) Act 1978 (charges in respect of persons not ordinarily resident in Great Britain);
(d)Article 42 of the Health and Personal Social Services (Northern Ireland) Order 1972 (SI No 1265 (NI 14)) (provision of services to persons not ordinarily resident in Northern Ireland).
18.23.12Essentially, therefore, a person who needs leave to enter or remain (broadly, a person from abroad who is not an EEA citizen) will not be ordinarily resident in the UK for NHS purposes unless he has ILR. British citizens and others with the right of abode, EEA citizens and persons from abroad with ILR may be ordinarily resident but whether they in fact are ordinarily resident depends on whether they have adopted the UK as their abode voluntarily and for settled purposes. This is explained further in the Guidance:
Meaning of ordinary residence
3.4 A person is not ordinarily resident in the UK simply because they have British nationality; hold a British passport; are registered with a GP; have an NHS number; own property in the UK; or have paid (or are currently paying) National Insurance contributions and taxes in the UK.
3.5 ‘Ordinarily resident’ is not defined in the 2006 Act. The concept was considered by the House of Lords in 1982 in the case of Shah v Barnet LBC and although the case was concerned with the meaning of ordinary residence in the context of the Education Acts, the decision is recognised as having a wider application and applies to the 2006 Act and the Charging Regulations.
3.6 When assessing the ordinary residence status of a person seeking free NHS services, a relevant NHS body will need to consider whether they are:
living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration.
3.7 The concept of ‘settled purpose’ has been developed by the courts:
There must be an identifiable purpose for their residence here, there can be one purpose or several, and it may be for a limited period. The purpose for living in the UK must have a sufficient degree of continuity to be properly described as ‘settled’.
3.8 Ordinary residence can be of long or short duration. A person can be ordinarily resident in more than one country at once.
18.23.13The Guidance suggests a three/four-stage test for determining the issue of ordinary residence:
3.10 Whether a person is ordinarily resident in the UK is essentially a three-fold test (four-fold for non-EEA nationals) assessing whether that individual: (i) is lawfully in the UK; (ii) is here voluntarily – it will be rare for a person not to be in the UK voluntarily; and (iii) is properly settled here for the time being; and (iv) in the case of non-EEA nationals subject to immigration control, has ILR in the UK.
Exempt persons and exempt services
18.23.14As indicated above (para
18.23.1) primary care services, be they medical (from a GP), dental or ophthalmic, are excluded from the charging regime. That is because regulation 3 of The National Health Service (Charges to Overseas Visitors) Regulations 2015 imposes a duty to charge overseas visitors on ‘a relevant NHS body’ that provides ‘relevant service’ and because regulation 2 defines ‘a relevant NHS body’ as ‘(a) an NHS foundation trust; (b) an NHS trust; or (c) a local authority within the meaning of section 2B (functions of local authorities and Secretary of State as to improvement of public health) of the [National Health Service Act 2006] exercising public health functions (within the meaning of that Act)’ and a ‘relevant service’ as ‘accommodation, services or facilities6 which are provided, or whose provision is arranged, under the 2006 Act other than‒ (a) primary medical services provided under Part 4 (medical services); (b) primary dental services provided under Part 5 (dental services); (c) primary ophthalmic services provided under Part 6 (ophthalmic services); or (d) equivalent services which are provided, or whose provision is arranged, under the 2006 Act’.
18.23.15Certain NHS services and certain categories of individual are exempt from the charging regime, as explained in the Guidance as follows:
Chapter 1 Exempt services and individuals
This chapter sets out details of all services which are free of charge to patients, and of all individuals who are entitled to receive healthcare on the same basis as an ordinarily resident person
1.1 The following services are free at the point of use for all patients. A charge cannot be made or recovered from any overseas visitor for:
•accident and emergency (A&E) services, this includes all A&E services provided at an NHS hospital, eg those provided at an accident & emergency department, walk-in centre or urgent healthcare centre. This does not include those emergency services provided after the overseas visitor has been accepted as an inpatient, or at a follow-up outpatient appointment, for which charges must be levied unless the overseas visitor is exempt from charge in their own right;
•services provided outside an NHS hospital, unless the staff providing the services are employed by, or working under the direction of, an NHS hospital;
•family planning services (does not include termination of pregnancy);
•diagnosis and treatment of specified infectious diseases (listed at chapter 4);
•diagnosis and treatment of sexually transmitted infections;
•treatment required for a physical or mental condition caused by:
■torture;
■ female genital mutilation;
■domestic violence; or
■sexual violence,
except where the overseas visitor has travelled to the UK for the purpose of seeking that treatment.
Exempt categories of person
1.1 The following categories of overseas visitor are exempt from charge:
•Those who have paid the health surcharge or are covered by transitional arrangements
•Non-EEA nationals, who are subject to immigration control, are exempt from charge if one of the following applies to them while their leave to enter/remain is valid:
■they have paid the surcharge; or
■they are exempt from payment of the surcharge
5Except when the exemption is because they have a visitor visa under Part 2 of the Immigration Rules or because they are visiting for six months or less. or have had the requirement waived or reduced, or have had part (but not all) of the surcharge refunded to them; or
■they would have been covered under one of the above, but for the fact that they applied for leave to enter or remain in the UK before the start of the surcharge (this will include some people already resident here without indefinite leave to remain, and a small number of people arriving after 6 April 2015 who applied for leave before that date).
•A child born in the UK to an above mentioned exempt person is also exempt from charge up to the age of three months provided that the child has not left the UK since birth.
•Those with an enforceable EU right to free healthcare
•Anyone insured for healthcare in another EEA member state and who, for medically necessary treatment, presents either an EHIC from that member state or a PRC (see Introduction for definitions), or, if coming to the UK specifically for treatment, presents an S2 form for that treatment (see chapter 9 for more details).
•Anyone who has a UK-issued S1 form registered in another EEA member state or Switzerland except for family members of frontier workers.
•The spouse/civil partner and children under 18 of the above are also exempt when lawfully visiting the UK with them, unless they have an enforceable EU right in their own right.
6That is, the exemption only applies where EU law does not provide them with a right to an EHIC or PRC of their own – in practice this is likely to be only when their same-sex marriage or civil partnership is not recognised by the insuring member state. Vulnerable patients and those detained
•Refugees (those granted asylum, humanitarian protection or temporary protection under the immigration rules).
•Asylum seekers (those applying for asylum, humanitarian protection or temporary protection whose claims, including appeals, have not yet been determined).
•Individuals receiving support under section 95 of the Immigration and Asylum Act 1999 (the 1999 Act) from the Home Office.
•Failed asylum seekers receiving support under section 4(2) of the 1999 Act from the Home Office or those receiving support under section 21 of the National Assistance Act 1948 or Part 1 of the Care Act 2014 from a local authority to provide accommodation.
•Children who are looked after by a local authority.
•Victims, and suspected victims, of modern slavery,
7Modern slavery includes human trafficking, as well as slavery, servitude or forced or compulsory labour. as determined by a designated competent authority, such as the UK Human Trafficking Centre or the Home Office. This includes their spouse/civil partner and any children under 18, provided they are lawfully present in the UK.
•An overseas visitor who has been granted leave to enter the UK outside the immigration rules, in whose case the Secretary of State for Health determines there to be exceptional humanitarian reasons to provide a free course of treatment. This exemption will also apply to their child and/or companion who is authorised to travel with them, for whom the exemption is limited to treatment, the need for which arose during the visit, and cannot await their return home.
•Anyone receiving compulsory treatment under a court order or who is detained in an NHS hospital or deprived of their liberty (e.g. under the Mental Health Act 1983 or the Mental Capacity Act 2005) is exempt from charge for all treatment provided, in accordance with the court order, or for the duration of the detention.
•Prisoners and immigration detainees.
UK Government employees and war pensioners
•UK armed forces members, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK (even if they are on a visit visa).
•UK Crown servants who are in the UK in the course of their employment, or who were ordinarily resident prior to being posted overseas, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK.
•Employees of the British Council or Commonwealth War Graves Commission who are in the UK in the course of their employment, or who were ordinarily resident in the UK prior to being posted overseas, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK.
•Those working or volunteering in employment overseas that is financed in part by the UK Government who are in the UK in the course of their employment, or who were ordinarily resident in the UK prior to being posted overseas, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK.
•Those receiving war pensions, war widows’ pensions or armed forces compensation scheme payments, plus their spouse/civil partner and children under 18 when these family members are lawfully visiting the UK with the recipient of this pension/payment.
Those covered by reciprocal healthcare agreements, other international obligations and employees on UK-registered ships
•Anyone entitled to free healthcare in the UK under the terms of a reciprocal healthcare agreement with a country outside the EEA (usually limited to immediate medical treatment); see Chapter 10 for more details.
•Nationals of states that are contracting parties to the European Convention on Social and Medical Assistance or the European Social Charter and who are lawfully present here and without sufficient resources to pay. Free treatment is limited only to that which cannot wait until the overseas visitor can return home and provided the person did not come to the UK for the purpose of seeking treatment.
•NATO personnel, when the services required cannot readily be provided by armed forces medical services, plus their spouse/civil partner and children under 18 provided they are lawfully present in the UK.
•Employees on ships registered in the UK where their normal place of work is on board a ship (even if they are here on a visit visa).
18.23.16Maternity treatment is not ‘exempt’ but under the must always be treated as being ‘immediately necessary’ so that although it is charged for it must be provided up-front and irrespective of the ability to pay and payment.
8See para 8.6 of the Guidance and see para XX below. What happens when urgent or immediately necessary treatment is needed?
18.23.17As noted above, A&E services are exempt up until the point that the patient is admitted as an in-patient. There remain, however, many forms of treatment that are ‘immediately necessary’ or ‘urgent’ that, if not provided, could result in the patient suffering very serious harm. A particular problem is that although the scheme includes widespread exemptions that apply to most overseas visitors who cannot be expected to the leave the UK to secure medical treatment in their country of origin there do remain gaps, most notably in relation to those who have made a claim for LTR under article 8 ECHR (or any other article than article 3 ECHR): such persons are not exempt but nonetheless it may not be compatible with their rights under the ECHR to expect them to leave the UK to seek medical treatment in their country of origin whilst their claim under the ECHR remains under consideration.
18.23.18The Executive Summary of the Guidance summarise the approach to be taken in cases where NHS treatment is immediately necessary or urgent but the patient is unable to pay:
12. A relevant NHS body also has human rights obligations, so chargeable treatment which is considered by clinicians to be immediately necessary must never be withheld from an overseas visitor, even when that overseas visitor has indicated that they cannot pay. This does not mean that the treatment should be provided free of charge. Charges will still apply, and, if not yet recovered, should be pursued after the treatment is provided. Treatment which is not immediately necessary, but is nevertheless classed as urgent by clinicians, as it cannot wait until the overseas visitor can return home, should also be provided regardless of the patient’s ability to pay. Every effort should be made to obtain payment or a deposit in the period before treatment starts. Non-urgent, or elective, treatment should not begin until full payment has been received. See Chapters 11 and 13 for more important information about how and when to ask for payment from chargeable overseas visitors.
18.23.19More detail is provided in Chapter 8, which includes the following:
What is immediately necessary, urgent and non-urgent treatment?
8.3 Only clinicians can make an assessment as to whether a patient’s need for treatment is immediately necessary, urgent or non-urgent. In order to do this they may first need to make initial assessments based on the patient’s symptoms and other factors, and conduct further investigations to make a diagnosis. These assessments and investigations will be included in any charges.
8.4 Immediately necessary treatment is that which a patient needs:
•to save their life; or
•to prevent a condition from becoming immediately life-threatening; or
•promptly, to prevent permanent serious damage from occurring.
8.5 Relevant NHS bodies must always provide treatment which is classed as immediately necessary by the treating clinician irrespective of whether or not the patient has been informed of, or agreed to pay, charges, and it must not be delayed or withheld to establish the patient’s chargeable status or seek payment. It must be provided even when the patient has indicated that they cannot afford to pay.
Maternity treatment
8.6 Due to the severe health risks associated with conditions such as eclampsia and preeclampsia, and in order to protect the lives of both mother and unborn baby, all maternity services, including routine antenatal treatment, must be treated as being immediately necessary. No woman must ever be denied, or have delayed, maternity services due to charging issues. Although she must be informed if charges apply to her treatment, in doing so she should not be discouraged from receiving the remainder of her maternity treatment. Overseas Visitor Managers (OVMs) and clinicians should be especially careful to inform pregnant patients that further maternity healthcare will not be withheld, regardless of their ability to pay.
8.7 Urgent treatment is that which clinicians do not consider immediately necessary, but which nevertheless cannot wait until the person can be reasonably expected to return home. Clinicians may base their decision on a range of factors, including the pain or disability a particular condition is causing, the risk that delay might mean a more involved or expensive medical intervention being required, or the likelihood of a substantial and potentially life- threatening deterioration occurring in the patient’s condition if treatment is delayed until they return to their own country.
8.8 For urgent treatment, relevant NHS bodies are strongly advised to make every effort, taking account of the individual’s circumstances, to secure payment in the time before treatment is scheduled. However, if that proves unsuccessful, the treatment should not be delayed or withheld for the purposes of securing payment.
8.9 Treatment is not made free of charge by virtue of being provided on an immediately necessary or urgent basis. Charges found to apply cannot be waived and if payment is not obtained before treatment then every effort must be made to recover it after treatment has been provided.
8.10 Non-urgent treatment is routine elective treatment that could wait until the patient can return home. Relevant NHS bodies do not have to provide non-urgent treatment if the patient does not pay in advance and should not do so until the estimated full cost of treatment has been received (but see paragraph 8.18).
8.11 The decision on whether a patient’s need for treatment is immediately necessary, urgent or non-urgent is only for clinicians to make. However, in determining whether or not a required course of treatment should proceed even if payment is not obtained in advance, or if it can safely wait until the patient can return home (i.e. whether it is urgent or non-urgent), clinicians will need to know the patient’s estimated return date. 8.12 It is the responsibility of OVMs to gather the information on when the patient can return home in such cases, based on the patient’s ability to do so. It is also the OVM’s responsibility to establish whether or not the patient is entitled to free NHS treatment in the first place.
Primary care
18.23.20As note above, the charging machinery relating to overseas visitors does not apply to primary care, which includes GP services, as well as dental and ophthalmic services.
18.23.21By virtue of regulations 17 to 19 of the National Health Service (General Medical Services Contracts) Regulations 2015 (‘the GMS Regulations’), GPs are obliged to provide primary care services to their patients, defined in regulation 2 of the GMS Regulations as:
(a)a registered patient,
(b)a temporary resident,
(c)persons to whom the contractor is required to provide immediately necessary treatment under regulation 17(7) or (9) respectively;
(d)any other person to whom the contractor has agreed to provide services under the contract; and
(e)any person in respect of whom the contractor is responsible for the provision of out of hours services
18.23.22A temporary patient, as set out in paragraph 20 of Schedule 3 of the GMS Regulations, is someone who intends to stay resident of a place for more than 24 hours but less than three months. A practice may accept a temporary resident if the contractor is satisfied that the person is either (a) temporarily resident away from their normal place of residence and is not being provided with essential services (or their equivalent) under any other arrangement in the locality where that person is temporarily residing; or (b) moving from place to place and not for the time being resident in any place (my emphasis).
18.23.23The statutory scheme for GPs does not set up any requirement for persons to have ordinary residence in the UK or, indeed, to have any kind of immigration status. Therefore, GPs have discretion to accept any person, including overseas visitors, as fully registered patients or as temporary residents if they are to be in the practice area for between 24 hours and three months. Moreover, if the GP’s list is open, he may only refuse the application to join the practice list either on a permanent basis or as a temporary patient ‘if the [GP] has reasonable grounds for doing so which do not relate to the applicant’s age, appearance, disability or medical condition, gender or gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sexual orientation or social class’ although in the case of an application on a permanent basis such grounds may include that the applicant does not live in the GP’s practice area or lives the near outer boundary area and any refusal must be supported by written reasons within 14 days (see paragraph 21 of Schedule 3 of the GMS Regulations). It would appear to be unlawful to refuse to register a person solely on the grounds that the person is not usually, ordinarily or habitually resident in the UK.
18.23.24Furthermore, GPs are under a duty to provide free of charge emergency treatment, irrespective of whether they are registered as a patient permanently or temporarily (regulations 17(7) – (11) of the GMS Regulations.
18.23.25The general prohibition on an NHS GP practice charging fees for services provided to patients is set out in Regulation 24 of the GMS Regulations. Given no comparable regulations have been made under section 175 of the 2006 Act, this prohibition applies equally to GP patients who are overseas visitors/not ordinarily resident in the UK.
18.23.26Finally, as the Guidance points out (at para 11.47):
GPs should not be discouraged from referring their patients to the relevant NHS body. It is the relevant NHS body’s duty, not the GP’s, to establish entitlement for free NHS hospital treatment. Furthermore, neither relevant NHS bodies nor anyone acting on their behalf should imply that a particular patient should not be registered with a GP practice as that is exclusively a matter for that GP.