FREE NHS TREATMENT
No access to free NHS services for illegal migrants and visitors is a relentlessly pursued goal by the government. This is part of the ‘hostile environment’, but is also linked to the limited resources and capacities of NHS services. In short, there are 3 categories under the NHS rules for paying for healthcare: 1. Those who are subject to immigration control and who have paid the NHS Health Surcharge as part of their visa application process, have the right to receive free medical treatment during the validity of their visa. within the same scope as “ordinary residents”. 2. Those who are ‘ordinary residents’ in the UK can receive free NHS treatment. 3. Others – including illegal migrants and visitors, who have to pay for most medical care in the UK.
A&E (outpatient) AND GP
Treatment in A&E departments (outpatient) and in doctors’ surgeries remains free for everyone. Nationality, immigration status and ordinary residence are irrelevant to registration and it should not be refused on these grounds.
Those subject to immigration control (except Irish nationals) must pay the immigration health surcharge when applying for a visa to enter and stay in the UK for longer than 6 months. They cannot be considered ordinarily resident in the UK until they are granted indefinite leave to stay. Payment of the immigration medical surcharge entitles the payer to NHS-funded healthcare on the same basis as a person who is ordinarily resident. As long as the visa remains valid, they are entitled to free NHS services, including NHS hospital care, with the exception of services for which an ordinary UK resident must also pay, such as dentistry and prescriptions in England, and assisted reproduction services.
In England, free NHS hospital treatment is provided on the basis of a person being ‘habitually resident’. Being ordinarily resident does not depend on nationality, paying UK tax, paying National Insurance contributions, registering with a GP, having an NHS number or having a property in the UK.
R v Barnet LBC ex parte Shah UKHL 1982:
“habitually resident” refers to the residence of a man in a particular place or country which he has voluntarily adopted and for definite purposes as part of the regular order of his life for the time being, whether he is short or long term.
As we can infer from the above, determining who is an “ordinary resident” in the UK can be a complex issue to decide.
PAID MEDICAL CARE
As the NHS is a residence-based system, under NHS rules those not ordinarily resident in the UK, including former UK residents and UK nationals, are overseas visitors and may be charged for NHS services calculated at 150% of the national NHS rate. . The power to charge derives from section 175 of the National Health Service Act 2006 and the rules are set out in the National Health Service (Overseas Visitor Charges) Regulations 2015 (as amended).
From October 2017, NHS trusts are required to charge in advance for treatment that is not ‘immediately needed’ or ‘urgent’. This is to ensure that urgent or immediately necessary treatment is provided, regardless of an individual’s ability or willingness to pay for that treatment in advance. “Immediately needed” includes maternity care. What is “immediately necessary” or “urgent” can be the subject of litigation, as illustrated by a recent judicial review case mentioned below.
A foreign visitor who has been subjected to certain types of violence should not be charged for treatment or services necessary to treat any condition caused by such violence, in recognition of the particularly vulnerable position in which they may find themselves. The types of violence are:
- female genital mutilation
- domestic violence
- sexual violence
Treatment of infectious diseases specified in the regulations, treatment of sexually transmitted infections and family planning services are also free. This exemption also includes the treatment of the coronavirus.
RECENT HIGH COURT CASE
A case came to the High Court of England and Wales (Administrative Court) which was decided on 26.11.2021, where the basis for charging overseas visitors for NHS treatment was assessed. R (OK) v The Royal Free London NHS Foundation Trust  EWHC 3165 (administrator)
In this case, the claimant was a Nigerian national who had lived in England since 1990 and had children there. He married a British citizen in 1993 and obtained the ILR in 1996. He never applied for naturalization as a British citizen, which had a significant impact on his current situation. In 2012, he was sentenced to 38 months in prison for possession of drugs and false documents. He was then issued with a deportation order and, having failed on appeal, became an ‘overseas visitor’ for NHS processing.
Following a diagnosis of kidney disease, it was determined that he needed dialysis treatment at a hospital on a regular basis. The NHS requested an upfront payment for her treatment. Whether the required treatment was “urgent” or “immediately necessary” was the subject of his judicial review case.
The judge concluded that the issue of how the treatment should be received was based on medical grounds. The urgency of treatment was decided by health care professionals and the question of payment for the service and the applicant’s immigration status were relevant. Thus, the Court dismissed the plaintiff’s challenge and the judicial review was unsuccessful.
The High Court judgment quoted above confirmed that the current scheme which takes a person’s immigration status into account when assessing entitlement to free NHS treatment is legitimate.
It is worth mentioning again the importance of applying for British citizenship as soon as someone is eligible. With British citizenship, immigration status would then no longer be an issue. Similar to the recent Polly Gordon eviction case we talked about earlier.
It is also important to remember that an NHS debt of £500 or more may justify a visa refusal on ‘general grounds’ and that the Home Office checks this when assessing applications and refuses them if the claimant has an NHS debt.
National Health Service Act 2006 (legislation.gov.uk)
How NHS healthcare charges apply to overseas visitors – GOV.UK (www.gov.uk)
Shah, R (at the request of) v Barnet London Borough Council  UKHL 14 (December 16, 1982) (bailii.org)
Ok, R (at the request of) v The Royal Free London NHS Foundation Trust  EWHC 3165 (Admin) (26 November 2021) (bailii.org)
Originally published on December 21, 2021
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.