Secondary (or ‘acute’) care is the healthcare that people receive in hospital. It may be unplanned emergency care or surgery, or planned specialist medical care or surgery. If someone goes to hospital for planned medical care or surgery, this will usually be because their GP, or another primary care health professional, has referred them to a specialist.
The following treatment is exempt from any charge:
- Accident and emergency (but not treatment as an inpatient or outpatient)
- Family planning
- Services not provided at a hospital, or under the direction of or by a member of staff at a hospital;
- Treatments of certain communicable diseases such as measles, mumps, food poisoning, malaria and TB
- Diagnosis and treatment of specified infectious and sexually-transmitted diseases (including HIV)
- Treatment for torture, female genital mutilation, domestic violence or sexual violence, provided that the overseas visitor did not come to the UK to get treatment
Secondary healthcare is available on the NHS, free of charge for anyone who is ‘ordinarily resident’ in the UK. A person was previously regarded as ‘ordinarily resident’ if she or he was lawfully living in the UK voluntarily and for a settled purpose. However, the definition of ‘ordinarily resident’ changed under the Immigration Act 2014 and for non-EEA nationals is now limited to people who have ‘settled status’ in the UK (i.e. they have indefinite leave to remain).
Those who do not have settled status may in some situations be charged for services unless they fall under one of the exemptions, which include:
- Refugees
- Asylum seekers, including those with fresh claims
- A person seeking, or who has been granted, humanitarian or temporary protection under the Immigration Rules
- A person in receipt of support under section 95 Immigration and Asylum Act 1999 (asylum seekers and refused asylum seeking families)
- A person in receipt of support under section 4 Immigration and Asylum Act 1999 (refused asylum seekers)
- Victims of human trafficking (who have been referred to the National Referral Mechanism and received a reasonable grounds decision)
- Failed asylum seekers who are supported by a local authority under section 21 of the National Assistance Act 1948
- Children who are in the care of a local authority and children accommodated by a local authority
- Those with enforceable EU rights (and family members – i.e. their spouse/ civil partner or child for whom they have parental responsibility)
- A child born in the UK to an exempt parent is exempt for up to three months while still in the UK
- Migrants who have paid the immigration health charge, or who are exempt from paying such a charge (see below).
From 23 October 2017 some NHS services in England are obliged to charge the 150% of the estimated full cost of treatment from some patients in advance of treatment, unless doing so would prevent or delay the provision of immediately necessary or urgent care (the definition of which includes maternity services).
The services the Regulations apply to has also been broadened: from 23 October 2017, overseas visitors will be charged up-front for NHS services even where that service is provided by private and voluntary sector organisation (not including palliative care services and other exempt treatments). Other services, including primary healthcare, sexual health and treatment of specified infectious diseases, remain free at the point of use for all.
The test for who should be charged is whether or not a person is ‘ordinarily resident’ in the UK. Whether a person is ordinarily resident in the UK is essentially a three-fold test (fourfold for non-EEA nationals) assessing whether that individual:
- is lawfully in the UK
- is here voluntarily (though it will be rare for a person not to be in the UK voluntarily)
- is properly settled here for the time being
- in the case of non-EEA nationals subject to immigration control, has ILR in the UK.
Individuals with limited leave to remain in the UK will have paid the Immigration Health Surcharge at point of application (or will have been deemed exempt from doing so due to destitution), and are thus exempt from up-front charging.
From 6 April 2015, any non-EEA national making an application for limited leave to enter or remain in the UK for more than six months will have to pay a ‘health charge’ alongside their application fee. This will also apply to those already in the UK applying to extend their leave. The charge is £200 per year (apart from students and their dependants who will be charged £150 year) for the maximum period of leave which could be granted under the Immigration Rules. So, for example, if applying for 2 ½ years’ leave, the applicant would need to pay a health charge of £500. Dependents will be charged the same amount as the main applicant. If no fee is paid then the application will be deemed to be invalid and will not be processed.
Certain applications are exempt from the charge. These include:
- A claim for asylum or humanitarian protection
- A claim under Article 3 of the European Convention on Human Rights
- An application as a victim of human trafficking
- Destitution Domestic Violence Concession
- Any application for leave to remain made a child being looked after by a local authority
Part 9 of the Immigration Rules lays out that an individual’s debt to the NHS of £500 or more will normally lead to a refusal of an immigration application. 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.
Previously having owed money to the NHS for treatment, even if this money has been paid off, might lead to an enhanced risk of refusal in the future. The Home Office policy document General grounds for refusal Section 4 of 5: considering leave to remain states that:
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.
It is important that an individual with NHS debts – whether present or historical – gets legal advice from an accredited immigration adviser.
