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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

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 now extensive system of NHS charging is the 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 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, and thereby supposedly to reduce the number of migrants coming to or staying 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 FM (family members); and Appendix Armed Forces.

Paragraph 9.11.1 of Part 9 says:

An application for entry clearance, permission to enter or permission to stay 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.

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Under Appendix FM for family member applications, paragraph S-EC.3.2 states that:

The applicant may be refused [entry clearance] 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.

There are equivalent Appendix FM provisions for permission to stay (paragraph S-LTR.4.5, read in conjunction with S-LTR.4.1) and for indefinite leave to remain (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 a £500 debt to lead to a refusal of Appendix FM and Appendix Armed Forces 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.

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”.

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 move to the UK. Government guidance on NHS charging says acknowledges this:

For… an EU or EFTA national who has moved to the UK before 31 December 2020 and exercised their treaty rights… 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.

These favourable pre-Brexit rules have been reflected in an amendment to section 39 of the 2014 Act. It allows people with pre-settled status under Appendix EU — i.e. EEA nationals who moved here before Brexit, and their family members — 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 “generally entitled to relevant services on the same basis as a person ordinarily resident in the UK” (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. 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 19 countries and territories with which the UK has reciprocal health agreements, listed in section 10 of the guidance.

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, “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 COVID-19
  • 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 suggests that immigration applications featuring NHS debt will only be granted where there are “compelling or compassionate circumstances or human rights considerations that would make refusal disproportionate”. The guidance unfortunately does not give any examples of what would be considered “compelling or compassionate circumstances”.

Where the person is applying for permission to stay or indefinite leave to remain, the guidance states that caseworkers should ask the applicant to demonstrate that they have paid off the debt. Presumably, if the applicant pays the debt at that stage, the Home Office will not refuse their application on that basis.

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

The guidance 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 permission 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 permission. Marta has never been told by the NHS that she needed to pay for these services.

The Home Office contacts the hospital where Marta gave birth and asks it to send her a bill. The caseworker then refuses her application on the basis that she owes over £1,000 to the NHS.

Marta pays the invoice and resubmits her application, which is then granted.

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 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

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 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 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:

If the applicant has only recently discharged their debt to the NHS, before granting entry clearance, permission to enter or stay, you must consider the effect of paying off the debt on the person’s ability to meet any relevant requirements of the Immigration Rules. This includes the ability of the applicant to maintain and accommodate themselves while in the UK and that they have no intention to seek further NHS treatment without paying, unless such access is permitted on the route under which they are applying.

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 has been updated (by Alex Piletska) so that it is correct as of the new date of publication shown.

Nath is an immigration solicitor and Senior Caseworker at Islington Law Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi.

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