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General grounds for refusal: owing a debt to the NHS
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General grounds for refusal: owing a debt to the NHS

Ever since 2013, the government has had a Visitor and Migrant NHS 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 Immigration Act 2014 and the National Health Service (Charges to Overseas Visitors) Regulations 2015 introduced the Immigration Health Surcharge and allowed NHS trusts in England to charge overseas visitors up to 150% for treatments in secondary care. The charging regulations were expanded in October 2017, forcing community services to also charge migrants and making provision for NHS trusts to request advance payments for non-urgent care.

The objective of the plan, though, is not limited to increasing the income of the NHS. It is 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 a ground for refusing applications for leave to enter or remain in the UK.

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 V; Appendix FM; and Appendix Armed Forces.

Paragraph 320 (22) of part 9 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.

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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).

There are equivalent provisions scattered throughout the Immigration Rules for different immigration categories. Under Appendix V (for visitors), paragraph V 3.14 reads:

An applicant will normally 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.

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.

For Appendix FM and Appendix Armed Forces applications, for a debt to lead to a refusal, 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.

While the power to refuse on the basis of an NHS debt is UK-wide, the rules on when a debt is incurred will vary depending on the charging rules in England, Scotland, Wales and Northern Ireland. This article focuses on the rules in England.

Who can incur a debt to the NHS?

The 2015 charging regulations state that a person who is an “overseas visitor” is potentially liable to incur a debt to the NHS. “Overseas visitor” is defined as “a person not ordinarily resident in the United Kingdom.”

In short, 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 is slightly more complex.

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 [1982] UKHL 14. Ordinary residence is different from the “right to reside” test.

An EEA national can be ordinarily resident from the day of arrival in the UK. Government guidance on NHS charging says of EEA nationals:

For a British citizen, an EEA/Swiss national moving to the UK before 31 December 2020 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.

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

When do non EEA nationals incur a debt to the NHS?

As mentioned above, anyone who is not “ordinarily resident” in the UK is liable to be charged for most secondary healthcare treatment. This includes:

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

Some overseas visitors will be exempt from healthcare charge, despite not being ordinarily resident in the UK. Anyone who has paid the Immigration Health Surcharge is entitled to use the NHS for the duration of their visa. They have, after all, already paid for the privilege.

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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.”

Other overseas visitors exempt from secondary healthcare charging include:

  • Those in the UK with valid visas of more than six months
  • Asylum seekers and refugees
  • Children looked after by a local authority
  • Victims and suspected victims of modern slavery
  • Prisoners and immigration detainees
  • Most EEA nationals and their family members
  • Residents of 17 countries with whom the UK has reciprocal health agreements, listed at pages 85 and 86 of the guidance

If you are exempt from secondary healthcare charging, 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). The most common scenario where someone may be liable to charges 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, “but not including services provided after the overseas visitor is accepted as an inpatient or at a follow-up outpatient appointment”
  • Diagnosis and treatment for specified infectious diseases, including TB, malaria and coronavirus
  • 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 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 on General grounds for refusal: considering entry clearance and considering leave to remain 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 would be considered “compelling or compassionate circumstances”.

In addition, the leave to remain guidance states that caseworkers should ask an applicant with an NHS debt to demonstrate that they have paid it off. Presumably, if the applicant pays the debt at that stage, the Home Office will not refuse the application on that basis.

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).

Home Office officials can and do contact the NHS to insist that an invoice is issued — then refuse the application on the basis that the invoice is unpaid.

Example

Marta applies for leave to enter the UK with her two children. It is clear from the information given in Marta’s application that she gave birth to her two children while in the UK without leave. Marta had never been told by the NHS at the time that she had to pay for their services.

The Home Office must have contacted the hospital as her application is refused on the basis that she owed over £1,000 to the NHS for giving birth in one of their hospitals.

Marta paid the invoice and resubmits an application, which is granted.

From the experience of immigration lawyers, it seems that the Home Office makes these referrals for applications for leave to enter too. See How the Home Office used the NHS to refuse my client a visa.

Other ways migrants 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. 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 and 24 November 2016, 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?)
  • the type of application (Appendix FM/Armed Forces or other?)
  • whether there are “compelling or compassionate circumstances” or human rights considerations

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, 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 to pay off the bill at once, they may also want to consider agreeing a schedule of payment by instalments. 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 the 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 can be time-consuming, stressful and expensive.

This article was originally published in February 2017 and has been updated so that it is correct as of the new date of publication shown.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London. She tweets: @NathGbikpi.

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