Free NHS treatment
No access to free NHS services for illegal migrants and visitors, is a goal pursued relentlessly by the government. It is part of the ‘hostile environment’ but is also related to the limited resources and capacity of the NHS services. In short, there are 3 categories under NHS rules relating to payment for treatment: 1. Those who are subject to immigration control and paid the NHS Health Surcharge as part of their visa application process, are entitled to receive free medical treatment during their visa validity in the same scope as ‘ordinary residents’. 2. Those who are ‘ordinary resident’ in the UK can receive free NHS treatment. 3. Others – including illegal migrants and visitors, who have to pay for most of medical treatment in the UK.
A&E (outpatient) and GP
Treatment in A&E departments (outpatient) and at GP surgeries remains free for all. Nationality, immigration status and ordinary residence are not relevant for registration and it should not be refused on those grounds.
Those who are subject to immigration control (except Irish nationals) must pay the immigration health surcharge when applying for a visa to enter and remain in the UK for more than 6 months. They cannot be considered as ordinarily resident in the UK until they are granted indefinite leave to remain. Payment of the immigration health surcharge entitles the payer to NHS-funded healthcare on the same basis as someone who is ordinarily resident. For as long as the visa remains valid they are entitled to free NHS services, including NHS hospital care, except for services for which a UK ordinary resident must also pay, such as dentistry and prescriptions in England, and assisted conception services.
Within England, free NHS hospital treatment is provided on the basis of someone being ‘ordinarily resident’. Being ordinarily resident is not dependent upon nationality, payment of UK taxes, National Insurance contributions, being registered with a GP, having an NHS number or owning property in the UK.
R v Barnet LBC ex parte Shah UKHL 1982: “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’
As we can sense from the above, considering who is ‘ordinary resident’ in the UK can be a complex matter to decide.
Chargeable medical treatment
Because the NHS is a residency-based system, under NHS rules those who are 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 charging power is derived from section 175 of the National Health Service Act 2006 and the rules are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2015 (as amended).
From October 2017 NHS trusts are required to charge upfront for treatment that is not ‘immediately necessary’ 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 upfront. ‘Immediately necessary’ includes maternity care. What is ‘immediately necessary’ or ‘urgent’ can be subject to disputes, which is illustrated by a recent Judicial Review case that we mention further below.
An overseas visitor who has been subjected to certain types of violence must not be charged for treatment or services needed to treat any condition caused by that violence, in recognition of the particularly vulnerable position they may be in. The types of violence are:
- female genital mutilation
- domestic violence
- sexual violence
Treatment for infectious diseases specified in the regulations, treatment of sexually transmitted infections and family planning services is also free of charge. This exemption also includes treatment for coronavirus.
Recent High Court case
There was a case brought before England and Wales High Court (Administrative Court) that 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 (Admin)
In this case the claimant was a Nigerian national who lived in England since 1990 and had children here. He married a British citizen in 1993 and obtained ILR in 1996. He has never applied for naturalisation as a British Citizen, which had significant impact on his current situation. In 2012 he was sentenced to 38 months in prison on drug and false documents possession charges. He was subsequently subject to a deportation order and, having failed his appeal, became an ‘Overseas Visitor’ for the NHS treatment purposes.
Following a diagnosis of kidney disease, it was determined that he needed dialysis treatment in a hospital on a regular basis. The NHS requested an upfront payment for his treatment. The matter whether the required treatment was ‘urgent’ or ‘immediately necessary’ was the subject of his Judicial Review case.
The judge found that the matter of the manner in which the treatment is to be received was based on the medical grounds. The urgency of the treatment was decided by the medical professionals and the matter of payment for the service and claimant’s immigration status were relevant. Thus the Court has rejected the claimant’s challenge and the Judicial Review was unsuccessful.
The above cited High Court judgement confirmed that the current regime that is taking into account someone’s immigration status 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 the immigration status would not then be an issue. Similar to the recent Polly Gordon deportation case we have written about earlier.
It is also important to remember that NHS debt of £500 or more may give reason for a visa refusal on ‘General Grounds’ and the Home Office is checking this when assessing the applications and is refusing them if applicant has NHS debt.