Suitability refusals: owing a debt to the NHS

Owing a debt to the National Health Service is a ground for refusing applications for permission to enter or remain in the UK. Such debts arise because “overseas visitors” are charged for certain types of NHS treatment.

The National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015 No. 238) required NHS trusts in England to charge 150% of the cost of secondary care. The charging regulations were expanded in October 2017, forcing community services to also impose charges and making provision for advance payments for non-urgent care. Separate but similar rules are in place in Scotland, Wales and Northern Ireland. This article focuses on the rules in England.

The official name for the extensive system of NHS charging is the NHS visitor and migrant cost recovery programme. “The programme’s overarching objective“, according to the Department of Health, “is to improve cost recovery and ensure that the NHS receives a fair contribution for the cost of the healthcare it provides to non-UK residents”.

The objective of the plan, though, is not limited to increasing the income of the NHS. It is part of a broader attempt to create a “hostile environment” for those without the right to stay in the UK.

What do the immigration rules say about refusal because of debt to the NHS?

Previously, the ground for refusal on the basis of an NHS debt could be found in Part 9 of the immigration rules. This has now been replaced with Part Suitability. Appendix FM and Appendix Armed Forces also had their own suitability rules which included a ground for refusal on the basis of NHS debt, but these rules have also now been replaced with reference to Part Suitability of the immigration rules.

Paragraph SUI 16.1 of Part Suitability says:

An application for entry clearance or permission may be refused where a relevant NHS body has notified the Secretary of State that the applicant has failed to pay charges under relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.

Note that the above only applies if the charge was incurred after 6 April 2016. For charges incurred between 1 November 2011 and 5 April 2016, an application should only be refused if the debt is £1,000 or more.

For a £500 debt to lead to a refusal of Appendix FM, Appendix Armed Forces and Appendix Private Life applications, the charge should have been incurred on or after 24 November 2016. For charges incurred between 1 November 2011 and 24 November 2016, applications should only be refused if the debt is £1,000 or more.

For EU, EEA or Swiss nationals, a debt of £500 or more would need to have been incurred on or after 1 July 2021 to lead to a refusal.

There are still some immigration routes, such as Appendix EU, which have their own suitability requirements or to which only particular provisions of Part Suitability apply. These routes are listed in paragraph SUI 1.1. – SUI 1.2. of Part Suitability.

Who can incur a debt to the NHS?

There is no statutory definition of who counts as “ordinarily resident”, but there is legislation on who does not count. Section 39 of the Immigration Act 2014 says that non-EEA migrants must have indefinite leave to remain in the UK to be ordinarily resident; anyone else is not ordinarily resident.

The situation for EEA nationals and their family members has historically been more complex.

EEA nationals

Before Brexit, those resident under EU law were generally entitled to use the NHS for free. This is because they could satisfy the legal test for being ordinarily resident (and therefore exempt from charges): “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” (Shah v Barnet LBC [1982] UKHL 14).

An EEA national could be ordinarily resident from the day they moved to the UK.

These favourable pre-Brexit rules were reflected in an amendment to section 39 of the 2014 Act. It allows people with pre-settled status under Appendix EU to be considered ordinarily resident despite not having indefinite leave to remain.

EEA nationals arriving in the UK after 31 December 2020 are treated in the same way as non-EEA nationals (see below).

Non-EEA nationals

As above, anyone who is not “ordinarily resident” in the UK is liable to be charged for most secondary healthcare treatment. But the charging regulations go on to exempt anyone who has paid the immigration health surcharge. The surcharge is levied on most applications to enter or remain in the UK for more than six months. As a result, people with immigration permission who have paid the surcharge are “able to access the NHS on broadly the same basis as UK residents for the duration of their immigration permission” (as the guidance puts it).

That means that the main categories of people who may be charged for treatment are:

• Those in the UK without permission
• Those on visitor visas
• Those on fiancé(e)/proposed civil partner visas

But even then, not all are chargeable. For example, there are further exemptions for:

• Asylum seekers and refugees
• Children looked after by a local authority
• Victims and suspected victims of modern slavery
• Prisoners and immigration detainees
• Residents of countries and territories with which the UK has reciprocal healthcare agreements, listed in schedule 2 of the regulations
• People who have made a late application to the EU Settlement Scheme, for charges incurred between the date a valid application is made and the date that the application is finally determined

The details on who is exempt are in Part 4 of the 2015 charging regulations. Those who are exempt from secondary healthcare charging cannot incur an NHS debt and so cannot be refused entry on this basis in the future.

What NHS treatment gives rise to an NHS debt?

To start with, it is important to mention that primary healthcare by a GP is free of charge (although prescriptions may not be). The most common scenario in which someone may end up being charged is after being treated at a hospital.

Even then, some treatments are not chargeable. The guidance helpfully lists which treatments are exempt, including:

• A&E services, though this “does not include those emergency services provided after the overseas visitor has been accepted as an inpatient (for example, once a patient has been formally transferred from the care of accident and emergency and admitted to a hospital) or at a follow-up outpatient appointment”
• Services provided as part of the NHS 111 or telephone advice line commissioned by an ICB or NHS England
• Diagnosis and treatment for specified infectious diseases listed in schedule 1 of the regulations
• Diagnosis and treatment for sexually transmitted infections, most commonly HIV
• Family planning services (e.g. contraceptive products but not termination of pregnancy)
• Palliative care services provided by a registered palliative care charity or a community interest company
• 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.

When might an NHS debt be overlooked?

Refusal on the basis of an outstanding debt to the NHS is a discretionary power, meaning that the Home Office “may” refuse the application but does not have to do so.

The Suitability: debt to the NHS guidance states that ”although it will often be appropriate to refuse an application where there is an NHS debt you must consider whether to do so based on the circumstances of the individual case.”

The guidance offers the following list of relevant factors that decision makers may consider in deciding whether to refuse an application due to NHS debt:

• the applicant’s circumstances, for example are they in the UK or seeking to return to the UK, and for what purpose
• family circumstances (such as the need to stay in the UK to care for a family member i.e., parent to a British child)
• illness of applicant (which may affect ability to work to repay debt)
• financial circumstances (i.e., whether the applicant could repay the debt or agree a repayment plan)
• other compelling or compassionate circumstances

How does the Home Office find out about an NHS debt?

The guidance states:

NHS bodies use their own internal processes to recover NHS debt and will only notify the Home Office once the debt has been outstanding for two months or more from the date of invoice and there is no agreement in place to pay by instalments. … For an NHS debt to appear on an applicant’s immigration record, the NHS body must have reported the debt to the Home Office through the monthly return.

For a real world example, see How the Home Office used the NHS to refuse my client a visa.

Other ways migrants may be penalised for using the NHS

The Home Office can also use the fact that a person used the NHS without having permission to do so, as follows:

• To prove that an applicant “contrived to frustrate the intentions of the rules”. In entry clearance applications, an applicant can be refused where they previously breached the immigration rules and there are aggravating circumstances. These aggravating circumstances include “getting NHS care to which they are not entitled”.
• To prove that an applicant made false representations as part of a previous application. The suitability guidance states that where an NHS debt relates to a dependant child, for example, caseworkers “must consider whether the main applicant’s claimed reason for entering the UK at the time of their previous application was genuine, or whether their intention was to access healthcare for their child” and refers the caseworker to the guidance on false representations

Top tips for dealing with NHS debt

It is not the case that everyone who ever received medical treatment in the UK will be refused. To assess whether access to the NHS may affect an application, applicants and their legal representatives should consider:

• The date of the treatment (key dates are 1 November 2011, 6 April 2016, 24 November 2016, and 1 July 2021 as explained above)
• The immigration status of the applicant at the time of the treatment
• The nature of the treatment (is it exempt?)
• The amount of the debt (more or less than £500/£1,000?)
• Whether there are “compelling or compassionate circumstances” or human rights considerations

Applicants and their legal representatives should also be aware that applicants might never have been told that they had to pay for using the NHS, but may still be refused on the basis of an unpaid debt. It may be necessary to contact the hospital where they were treated and ask if they were, or should have been, issued with an invoice. If so, the safest course of action might be to pay it; the hospital should give applicants guidance on how to do so.

If applicants cannot afford to pay off the bill at once, they may also want to consider agreeing a schedule of payment by instalments. The suitability guidance suggests that the NHS will not inform the Home Office of a debt if the applicant has an agreed payment plan which is being maintained.

Even where NHS debt has been paid, there is still an enhanced risk of refusal for other reasons. In the guidance Home Office officials are steered towards potentially refusing on the grounds of maintenance and accommodation:

Caseworkers should consider whether paying the NHS debt in full means that the applicant no longer holds the required level of funds to demonstrate that they can maintain and accommodate themselves in the UK if there is a requirement for them to do so.

Legal challenges to NHS debt refusals may well succeed but can be time-consuming, stressful and expensive.

This article was originally published in February 2017 and was previously updated by Alex Piletska in 2022. It has since been updated by Rachel Whickman so that it is correct as of the new date of publication shown.