On 6 February 2017, the government announced that new regulations will come into force in April 2017, requiring all hospitals to check whether patients are eligible for free NHS treatment and, if not, to charge them upfront for non-urgent, planned care.
This is part of “plans to recover the cost of health treatments provided to patients not ordinarily resident in the UK”, with the government aiming at recovering up to £500 million a year from overseas visitors not eligible for free care by 2017-2018. The Immigration Health Surcharge, introduced in April 2015, is also part of this “master plan”; according to the Department of Health, it generated £164 million in 2015-2016. That might sound like a lot, but is actually less than 0.15% of the overall NHS budget, which for 2015/2016 was around £116.4 billion. And “health tourism” has been shown to be a myth, or at least to make a minuscule dent in the overall NHS budget.
In short, these changes are not going to make any meaningful contribution to the NHS budget.
The objective of the plan, though, is not limited to increasing the income of the NHS. It part of a broader plan to create a “hostile environment” for those without the right to stay in the UK, and thereby supposedly to reduce the number of migrants coming or staying in the UK. Unsurprisingly, therefore, owing a debt to the NHS is also a ground for refusing applications for leave to enter or remain in the UK. This may, in reality, only affect a minority of applicants, as many cannot incur a debt to the NHS at all, including those all who paid the Immigration Health Surcharge.
What do the Immigration Rules say about refusal because of debt to the NHS?
The ground for refusal on the basis of an NHS debt can be found in part 9 of the Immigration Rules; Appendix FM and Appendix Armed Forces.
Paragraph 320 (22) of Part 9 of the Immigration Rules says that an application for entry clearance should normally be refused:
where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £500 in accordance with the relevant NHS regulations on charges to overseas visitors.
Similarly, an application for leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused for a debt of £500 under: paragraph 322(12) of Part 9.
There are equivalent provisions scattered throughout the Immigration Rules for different immigration categories. Under Appendix FM for family member applications, paragraph S-EC.3.2 reads:
The applicant may be refused on grounds of suitability if one or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.
The equivalent provision for applications for leave to remain under Appendix FM is found at paragraphs S-LTR.4.5 read in conjunction with S-LTR.4.1. For an application for indefinite leave to remain under Appendix FM, the relevant provision is at paragraph S-ILR.4.5 read in conjunction with paragraph S-ILR.4.1. Under Appendix Armed Forces, the relevant rule is found at paragraph 10B.
Who can incur a debt to the NHS?
The National Health Service (Charges to Overseas Visitors) Regulations 2015 (link is to regulations as made and does not include subsequent amendments) state that a person who is an “overseas visitor” is potentially liability to incur a debt to the NHS. “Overseas visitor” is defined as “a person not ordinarily resident in the United Kingdom.” What does that mean for EEA and non EEA nationals?
Can EEA nationals incur a debt to the NHS?
EEA nationals and those resident under EU law are generally entitled to use the NHS. This is because a person who is “ordinarily resident” in the UK is exempt from charges and most EEA nationals will be ordinarily resident.
There is no statutory definition but a person will usually be ordinarily resident if he or she is “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  1 All ER 226). Ordinary residence is different to the “right to reside” test.
An EEA national can be ordinarily resident from the day of arrival in the UK. The Government guidance on NHS charging says of EEA nationals:
For a British citizen, an EEA national and for a non- EEA national with ILR or a non-EEA national not subject to immigration control, it is perfectly possible to be ordinarily resident here from the day of arrival, when it is clear that that person has, upon arrival, taken up settled residence.
Entitlement to use the NHS does not count as “comprehensive sickness insurance” for other purposes of EU law, which is a separate issue.
When do non EEA nationals incur a debt to the NHS?
Anyone who has paid the NHS surcharge, which is generally £200 per year for the duration of a visa, paid up front at the time of application, is entitled to use the NHS for the duration of their visa. They have, after all, already paid for the privilege and they are not categorised as “overseas chargeable patients.” The Government website says:
Payment of the health surcharge entitles the payer to NHS-funded healthcare on the same basis as someone who is ordinarily resident, from the date their visa is granted and for as long as it remains valid. They are entitled to free NHS services, including NHS hospital care, except for services for which a UK ordinary resident must also pay, such as dentistry and prescriptions in England.
For those who have not paid the NHS surcharge, broadly speaking anybody who is not “ordinarily resident” in the UK is liable to be charged for hospital treatment. Even then, though, not all are “overseas chargeable patients.”
The Department of Health’s guidance is again useful in listing those who are “overseas chargeable patients”, which include:
- those in the UK without the right to remain
- those on visitor visas
- those on visas as fiancé(e)s/proposed civil partners
It might also be useful to give a list of the most common groups of people who are not “overseas chargeable patients”:
- Those in the UK with valid visas of more than six months
- Asylum seekers and refugees
- Prisoners and immigration detainees
- EEA nationals and their family members
- Nationals of countries with whom the UK has reciprocal health agreements – a list of current 17 countries is given at pages 89 and 90 of the guidance.
If you are not an “overseas chargeable patient” then you cannot incur an NHS debt in the first place and so cannot be refused entry on this basis in future.
What NHS treatment gives rise to an NHS debt?
To start with, it is important to mention that treatment by a GP is free of charge (although prescriptions may not be). Most commonly, therefore, one may be liable to be charged for receiving treatment at a hospital.
Even then, some treatments are not chargeable. There is a useful page on the gov.uk website setting out various entitlements and then the Guidance on implementing the overseas visitor hospital charging regulations 2015 helpfully lists at pages 34 to 36 which treatments are exempt. They include:
- Treatment by A&E departments
- Diagnosis and treatment for specified infectious diseases, including TB, malaria and yellow fever
- Diagnosis and treatment for sexually transmitted infections, most commonly HIV
- Family planning services (e.g. contraceptive products but not termination of pregnancy);
- Treatment required for a physical or mental condition caused by:
- 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 entry be permitted even with an outstanding debt to the NHS?
In all cases refusal on the basis of an outstanding debt to the NHS is a discretionary power; this means that the Home Office will only “normally” refuse the application, but does not have to do so.
Guidance to officials in policy document “General grounds for refusal: considering entry clearance” suggests that admission will only be granted where there is an outstanding debt to the NHS where “there are compelling or compassionate circumstances or human rights considerations that would make refusal inappropriate because discretion should be exercised in the person’s favour.” Unfortunately, the guidance does not give any examples of what they would consider “compelling or compassionate circumstances”,
In addition, the guidance “General grounds for refusal: considering leave to remain” states that caseworkers should ask an applicant whom they discovered had an NHS debt to demonstrate that they paid it off. It is unclear, however, if by doing so the caseworker is giving the applicant an opportunity to pay that debt and then be granted the application; or whether, if the debt is settled after the date of the application, the application will still be refused and the applicant will need to submit a new application.
How does the Home Office find out about an NHS debt?
The guidance for grounds of refusal for applications for leave to remain (but not the one for leave to enter) states:
If the application for further or indefinite leave to remain contains evidence which indicates that chargeable treatment was received by the applicant after 1 November 2011, but the applicant was not charged, a referral must be made to the Interventions and Sanctions Directorate (I&SD)
From the experience of immigration lawyers it seems that the Home Office makes these referrals for applications for leave to enter too.
In addition, since 6 April 2016, the NHS has obligations to notify the Home Office of :
- outstanding debts of £1000 or more incurred between 1 November 2011 and 5 April 2016 which have been outstanding for more than 3 months
- outstanding debts of £500 or more incurred after 6 April 2016 which have been outstanding for more than 2 months
Note that, while it is “best practice” for the NHS to inform their patients that they will share their information with the Home Office, they have no obligation to do so.
Other ways overseas chargeable persons may be penalised for using the NHS
In addition to the above, the Home Office can 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 guidance says that caseworkers “must consider whether the applicant’s stated reason for entering or remaining in the UK at the time of their previous application was genuine, or whether their true intention was to gain free access to healthcare that is chargeable”.
Top tips for dealing with NHS debt
Not anyone who ever received medical treatment in the UK will be refused their application. 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 and 6 April 2016)
- the immigration status of the applicant at the time of the treatment, and in particular whether they paid the Immigration Health Surcharge
- the nature of the treatment (is it exempt?)
- the amount of the debt (more or less than £500?)
- the type of application (Appendix FM/Armed Forces or other?)
- whether there are “compelling or compassionate circumstances” and human rights considerations
However applicants and their legal representatives should also be wary that applicants might never have been told that they had to pay for using the NHS and still be refused on the basis of an unpaid debt.
The only way to found out whether one has incurred an NHS debt might be to contact the hospital where they were treated, and ask if they were, or should have been, issued with a bill. If so (but bearing in mind the above), the safest course of action might be to pay it off. The hospital should give applicants guidelines on how to do so. If applicants cannot afford paying off the bill at once, they may also want to consider agreeing a schedule of payment by instalment with the relevant NHS body, as the guidance seems to indicate that the NHS will not inform the Home Office of a pending debt if the applicant has an agreed payment plan which is being maintained.
Even where NHS debt has been paid off, there is still an enhanced risk of refusal for other reasons. In policy document General grounds for refusal Section 4 of 5: considering leave to remain Home Office officials are steered towards potentially refusing on the grounds of maintenance and accommodation:
You must consider whether the applicant has sufficient funds to support themselves in the UK, given that they previously had an outstanding healthcare debt. You must also consider whether they intend to access further NHS treatment without paying, unless such access is permitted on the route under which they are applying.
A legal challenge to such a decision may well succeed, but legal challenges can be time consuming, stressful and expensive.