24/03/2015 – Immigration analysis: What impact will the new NHS (Charges to Overseas Visitor) Regulations 2015 have on both migrants and NHS services? Eileen Bye, partner at Luqmani Thompson and Partners, expresses concern that the new rules will mean more people will now be excluded from hospital treatment by law, by means and by fear.

Original news

National Health Service (Charges to Overseas Visitors) Regulations 2015, LNB News 16/02/2015 100

The National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556, are replaced in order to implement changes in policy around the charging of overseas visitors for NHS services. The new regulations come into effect on 6 April 2015.

Background

The NHS (Charges to Overseas Visitors) Regulations 2015, SI 2015/238 (the 2015 Regulations) aim to make more people pay for hospital treatment. They are part of a package which includes:

o the Immigration Act 2014, s 38 (IA 2014) which provides for an ‘immigration health charge’ for people applying for permission for leave to enter or remain

o a related Immigration (Health Charge) Order 2015, SI 2015/792 (the Health Charge Order) which specifies the annual amount, and

o a more rigorous registration and enforcement system which is to be put in place within the NHS secondary health scheme to make sure people who are chargeable get charged

The 2015 Regulations replace the National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556 (the 2011 Regulations).

Charging relates to ‘relevant NHS bodies’ and services, NHS trusts and local authorities exercising public health functions, but not primary services, such as GPs. The 2015 Regulations come into force on 6 April 2015 and the Health Charge Order is due to come into effect on the same date.

Who will be charged?

A pre-emptive charge (the ‘health charge’) arises when people apply for leave to enter or remain, payable with the application fee.

Ad hoc charging by hospitals under these 2015 Regulations applies on the spot to an ‘overseas visitor’ who is not out of scope (overseas visitors who have paid the health charge up front are among the categories who will be out of scope).

An ‘overseas visitor’ liable to charging means ‘a person not ordinarily resident in the United Kingdom’ (reg 2). ‘Ordinary residence’ is not defined in the 2015 Regulations. However, IA 2014, s 39 includes people who require leave and do not have it and people with limited leave. Gone is the useful rule of thumb in the 2011

Regulations exempting someone lawfully resident for 12 months or more. Anyone without indefinite leave can now be liable within the charging frame, unless they are within listed exemptions.

Who will be exempt?

People can be exempt according to nationality, status, condition and treatment needed, but the exemption may be time limited. Accompanying family members are not uniformly included.

Part 4 of the 2015 Regulations lists exemptions by character:

o those who have paid the immigration health charge up front when applying for leave to enter or remain for the relevant period (which will not include visitors with leave for six months or less)

o those with enforceable EU rights (and family members)

o those within social security coordination agreements (and family members)

o those within reciprocal health care agreements (listed in Sch 2 to the 2015 Regulations–some of which cover nationals and some of which include residents of the state party)

o refugees, humanitarian or temporary protection recipients under the Immigration Rules

o asylum-seekers (the Department of Health (DoH) ‘Guidance on Implementing Overseas Visitors Hospital Charging Regulations’, 31 October 2013, acknowledges fresh asylum claims to be included)

o asylum support recipients under the Immigration and Asylum Act 1999:

o –s 95 (mainstream asylum support pending determination of the asylum claim), and

o –s 4(2) (support for failed asylum seekers who are not for the time being removable)–detainees bailed to section 4(1)(c) support are not specified herein but may come under another heading

o failed asylum seekers supported under the National Assistance Act 1948, s 21

o children being looked after by a local authority under the Children Act 1989, s 22(1) general duty

o victims of human trafficking where a competent authority has identified them as such or decided there are reasonable grounds to believe them to be victims of trafficking, but only while the recovery and reflection period has not expired (and their family members)

o people detained in a hospital or subject to a court order for treatment

o prisoners

o detainees under immigration laws

o members of the regular and reserve forces, or in Crown service or similar governmental employment, NATO forces, war pensioners and armed forces compensation scheme payment recipients (and their family members)

o employees on UK registered vessels

Nationals of European Convention on Social and Medical Assistance (ECSMA) and European Social Charter (ESC) states, lawfully present, are in the exempt list, but only if the need for treatment arose during the visit and they are ‘without sufficient resources to pay the charge’. Their authorised companion or children are also exempt.

Treatment, ‘the need for which arose during the visit’, means with symptoms first occurring after arrival, and only treatment needed promptly for a condition which arose or became acutely exacerbated after arrival, which cannot wait until return, as well as provided they did not come for that purpose.

Exempt ‘family members’ is generally limited to the lawfully present spouse, civil partner or child of the principal overseas visitor and does not apply uniformly to all of the listed exempt categories. Regulation 25(5)-(8) seeks to include a wider definition of EU family members ‘by virtue of an enforceable EU right or any other exemption which they may be entitled to in their own right’.

A child born in the UK to an exempt parent is exempt for up to three months while still in the UK.

Exempt categories can continue to receive a course of treatment without charge even if they cease to be exempt at some point, save in categories where there is a defined period within the category (reg 3).

There is a gateway for ‘exceptional humanitarian reasons’, but it is exceedingly limited and only as determined by the Secretary of State (not the hospital). It is limited to a visitor granted leave to enter the UK outside the Immigration Rules, when the specified treatment is not available in the home country and subject to temporary accommodation and return arrangements being in place (Regulation 17).

What types of treatment are exempt?

Part 3 of the 2015 Regulations lists exemptions by the sort of service required:

o accident and emergency (but not for treatment as an inpatient or outpatient)

o family planning

o diagnosis and treatment of specified infectious and sexually-transmitted diseases (including HIV)

o 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

What is the scope of the health charge?

IA 2014, s 38, providing for the health charge, was commenced on 20 October 2014 (Immigration Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2014, 2014/2771) and details of how the immigration health charge will be applied are set out in the Health Charge Order. The Health Charge Order is in force from 6 April 2015 and will require non-EEA nationals applying for leave to enter or remain for a limited period of six months or more to pay a charge which is likely to be £200 per annum, or £150 for students. If the charge is not paid, the application can be refused if it is an entry clearance application or considered invalid if it is an application for further leave to remain.

There is transitional protection. The health charge cannot be imposed on those who made applications for leave to enter or remain before the date of coming into force of the first order under IA 2014, s 38 (that is, before the immigration health charge becomes effective). They may have to pay when they next apply for leave, after the immigration health charge comes into effect.

The Health Charge Order exempts:

o visitors, irrespective of the length of leave granted

o entry clearance applicants whose grant of leave is six months or less

o Tier 2 intra-company transfers and their dependants

o vulnerable groups (looked after children and applicants for asylum or protection, destitute domestic violence victims and victims of human trafficking)

o dependants of HM forces and other armed forces who are exempt from immigration control

o some beneficiaries of international agreements and EU obligations

o nationals of Australia and New Zealand, and

o British Overseas Territories citizens resident in the Falkland Islands

The relevant period covered by the health charge is the period of leave granted or where extended by the Immigration Act 1971, s 3C (continuation pending variation) or s 3D (continuation following revocation). This protection does not apply to people with leave of six months or less (reg 10(3)).

How will hospital charging be put into practice with status checks?

Research reported in the NHS Cost Recovery Programme impact assessment of 14 July 2014 (page 7) suggested that overseas visitors (EEA and non-EEA) account for around 4.5% of the population served by the NHS and around 2% of NHS expenditure, costing the UK around £340m, of which around £180m is potentially recoverable through the European Health Insurance Card (EHIC). It is estimated that the NHS recovered around £50m from the EEA in 2013/14, less than 20% of the potential total.

For non-EEA visitors, the estimated total cost is around £1.1bn, of which approximately 14% (£156m) is potentially chargeable (most being non-chargeable or exempt). In 2013/14, £47m was recovered from non-EEA patients (30% of the potentially chargeable amount).

The responsibility for identification, invoicing and enforcement rests generally with the hospital, usually on the shoulders of the Overseas Visitor Manager. EEA home countries are invoiced via the Department for Work and Pensions Overseas Healthcare Team.

The aim is to improve early identification. If the hospital identifies a chargeable patient but fails to recover costs, it is a loss to the hospital, whereas, if the patient is never identified as chargeable, the cost of treatment, provided free by the hospital, falls to the Commissioner. By way of incentive, charges can include a profit and recovery will be audited.

The NHS has progressively been trying to straighten out regional price variations with uniform tariffs. The NHS (Cross-Border Healthcare) Regulations 2013, SI 2013/2269 apply in EEA cases.

Proving not only nationality but status at any particular time, condition, cause, and degree of emergency, is not always neatly documented and available, even for those still awake when they enter the hospital. Hospitals can check with the Home Office. R (on the application of W, X, Y and Z) v Secretary of State for Health [2014] EWHC 1532, [2014] All ER (D) 121 (May) has cleared the way for sharing of non-clinical information, even without consent. Establishing relevant information in the case of family members of the principal exempt person will be even more exacting.

The DoH guidance to hospitals suggests baseline questions might include asking to see a tenancy agreement and bank statements. Since checking for qualifying immigration status is now also outsourced to non-expert landlords and bank managers, such documents are now likely to be out of reach for more people.

What will be the position for EEA nationals and their family members?

In the Health Charge Order, EEA nationals are not subject to the health charge, but the 2015 Regulations do not exclude them expressly. Normally, once EEA provenance is identified, the established EEA costs recovery route will be engaged (with some EEA countries there is a mutual waiver, or a fixed payment formula, or actual cost recovery). Family members, even if not EEA nationals, can similarly qualify. However, a minefield opens up if they cannot produce the sort of evidence that hospitals will now be looking for, such as a European health insurance card or equivalent, to enable recovery of health charges from the relevant EEA state. How those with derivative rights, at the jagged edges of EEA law or those who are under-documented will fare, remains to be seen. Regulations 12 and 25 set out protection under EU regulations and agreements and ‘any other enforceable EU right’, leaving that fluid concept open to interpretation or misunderstanding and increasing Home Office inclination to tie a knot in it.

What will be the position for those who are in the UK without leave?

At particular risk are those without leave, unless they fall into one of the exempt categories, such as asylum seekers, and their vulnerability might give them that incentive. But uninsured short-term visitors are also in peril or anyone who cannot evidence their status, such as applicants in the ‘section 3C limbo’ with an extension application pending.

What are your main concerns about the 2015 Regulations?

It is estimated that more than 700,000 non-EEA temporary residents will no longer be eligible for free NHS care, unless they fit within one of the exemptions (NHS Charges for Overseas Visitors 2012 review, HC Library SN/SP/3051, 28.10.14). Deciding who is or is not within scope, for how long, and the boundaries of the exemption categories falls to a healthcare provider for whom this is not a natural area of expertise and for whom there is a conflict between the objective to provide and promote healthcare and the obligation to constrain provision. Hospitals cannot waive charges, other than by writing them off. These 2015 Regulations give them no discretion, even to avoid a breach of human rights.

A lot more people will now be charged for treatment. Some charges will be inappropriate but unchallenged by patients too ill to comprehend or who fail to follow up before or after they leave the country. They may then find themselves excluded from return under para 320 of the Immigration Rules because of failure to pay a charge of £1000 or more recorded as due to the NHS. Page 5

A lot more people will now be excluded from hospital treatment by law, by means and by fear. The emphasis on lawful residence and a privileged or exempt status, invoicing at the ready, backed-up by normalised exchange with the Home Office, are all likely to stoke fear and reluctance to seek medical treatment. That is all very well unless the individual concerned becomes so ill that they put themselves and others at grave and even costlier risk.

This article was first published on Lexis®PSL Immigration on 24 March 2015

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