The Implications of NHS Debt for Overseas Visitors
Navigating the intricacies of healthcare regulations for overseas visitors within the United Kingdom can be a complex endeavour. Since the overhaul of the NHS charges system in April 2015, overseas visitors have found themselves subject to potential healthcare debts, contingent on their residency status. The National Health Service (Charges to Overseas Visitors) Regulations 2015 define the criteria for an “overseas visitor” as someone not ordinarily residing in the UK, yet exemptions to these charges exist. In this blog post, we will delve into the particulars of these regulations, exemptions, and the implications of NHS debt for various applications, providing clarity in a complex landscape.
NHS Charges – Overseas Visitors
In April 2015, changes were made to the way the NHS charges overseas visitors for healthcare. This means that a person who is an “overseas visitor” is potentially liable to incur a debt to the NHS. The National Health Service (Charges to Overseas Visitors) Regulations 2015 define an “overseas visitor” as “a person not ordinarily resident in the United Kingdom”. There are exemptions.
Some relevant NHS services are free to everyone, even if the patient would be liable to pay for other services. Regulations 8 and 9 set out these services, including defining key terms, this may include for example, family planning services or services provided for the treatment of a conditions caused by torture or sexual violence.
The Department of Health and Social Care Guidance on implementing the overseas visitor charging regulations, January 2023 provides guidance on how the Regulations apply and how they should be implemented.
Immigration Health Surcharge – IHS
The Immigration Health Surcharge was introduced in April 2015. The guidance references the Immigration Health Surcharge at 5.8 and when an individual is entitled to free treatment:
An individual who pays the health surcharge is only entitled to free treatment on the same basis as an ordinary resident (but excluding assisted conception services) once their application for a visa has been granted, and not from the date when the health surcharge is paid. The exemption from charges for relevant services applies to the period of leave to enter or remain in the UK granted to the person. Once that leave expires or is curtailed, the person becomes liable for charges from then on, including where the person is part-way through a course of treatment unless an exemption in the charging regulations applies.
We have seen increases in the charge over the years and recently on 13 July 2023, the UK Government announced that the Immigration Health Surcharge (IHS) will increase by 66%, from £624 to £1,035 per person per year for most main applicants. We examined this increase in an article published recently on our Knowledge Centre.
Those applying for settlement (also known as indefinite leave to enter or remain) do not need to pay the IHS and are entitled to receive free healthcare if they are settled and are ordinarily resident in the UK.
Amendment of the Immigration Rules – NHS Debt
In order to allow for better recovery of NHS debt the Immigration Rules were amended to reflect potential NHS charges incurred and debt arising. NHS debt may have consequences for applications for both entry clearance and leave to remain. NHS debt features as a ground for refusal in Part 9 of the Immigration Rules and the suitability requirements in Appendix FM, Appendix Armed Forces to the Immigration Rules. Appendix Private Life, Appendix Settlement Family Life and Appendix Adult Dependent Relative to the Immigration Rules refer to the suitability requirements found in Appendix FM.
The Suitability: Debt to the NHS, Version 3.0, 08 December 2022 sets out that in assessing an application, a caseworker must check whether an Applicant has NHS debt and consider whether this debt may lead to refusal. The burden of proof, on the balance of probabilities, is on the Home Office to prove that NHS debt exists.
Given the consequences of debt to the NHS you may wish to consider seeking advice and/or settling any debt in advance of making an application.
What Potential Applications Does NHS Debt Not Apply To?
The guidance reads:
This ground for refusal does not apply to the following applications:
- protection claims (this means decisions on asylum and humanitarian protection claims as well as protection-based claims under article 3 of the European Convention on Human Rights (ECHR)), except applications under paragraphs 352ZH to 352ZS (Section 67 of the Immigration Act 2016 leave), 352I to 352X (Calais leave), and 352A to 352FJ (Family Reunion) of the Rules
- Appendix S2 Healthcare Visitor
- Appendix Service Providers from Switzerland
- Appendix EU
- Appendix EU (Family Permit)
- Nationality applications
- Appendix Ukraine Scheme (including applications under the Ukraine Family Scheme, Homes for Ukraine Scheme or Ukraine Extension Scheme).
Considering when the Debt Applies
The guidance sets out when the debt can be considered, it will depend on when it was incurred and the amount:
You can only consider refusing an application on grounds of NHS debt if any of the following apply:
- the applicant has an outstanding NHS debt, or cumulative debts, of £1000 or more incurred on or after 1 November 2011
- the applicant has an outstanding NHS debt, or cumulative debt of £500 or more incurred on or after 6 April 2016
- the applicant is an EU, EEA or Swiss national and has an outstanding NHS debt, or cumulative debt of £500 or more incurred since 1 July 2021
A person who has incurred charges of under £1000 before 6 April 2016 cannot be refused on this basis unless either of the following apply:
- they incur further charges of at least £500 on or after 6 April 2016
- they incur further charges on or after 6 April 2016 bringing the total outstanding NHS debt since 1 November 2011 to over £1000
For applications made with reference to Appendix FM, Appendix Private Life or Appendix Armed Forces the following considerations apply:
- the person has an outstanding NHS debt or cumulative NHS debt of £1000 or more incurred on or after 1 November 2011
- the person has NHS debt or cumulative debt of £500 or more incurred on or after 24 November 2016
A person who has incurred charges of under £1000 before 24 November 2016 cannot be refused on this basis after 24 November 2016 unless either of the following apply:
- they incur further charges of at least £500 on or after 24 November 2016
- they incur further charges on or after 24 November 2016, bringing the total outstanding NHS debt since 1 November 2011 to over £1000
When considering whether to refuse an application under Appendix FM or Appendix Armed Forces you must consider any human rights factors in accordance with the Appendix FM guidance, Private Life guidance and Armed Forces guidance
The caseworker must confirm the debt before considering refusing:
You must only consider refusing an application for entry clearance, permission to enter or permission to stay on the basis of NHS debt if the NHS debt information has been supplied or confirmed by an NHS body. For an NHS debt to appear on an applicant’s immigration record, the NHS body must have reported the debt to the Home Office through the monthly return. Upon receipt, NHS debtor information is quality checked prior to being attributed to an individual’s case records to ensure debts are applicable.
What Happens If the NHS Debt Is Incurred In Relation to the Care of a Child?
The guidance confirms that where any relevant NHS treatment or care was received by anyone under 18 it is the parent or legal guardian that may be liable for any healthcare charges.
If checks show an outstanding NHS debt relates to a child the application will be considered by a senior caseworker.
How Will The Home Office Know Of Any Debt?
Applicants may wonder how the Home Office would be aware of any debt, the guidance explains:
When an NHS body has notified the Home Office that an individual is the subject of an NHS Debt, this will be recorded on Atlas by Interventions, Sanctions and Compliance by creating an NHS Debtor case card. The NHS Debtor case card is visible on the Atlas Person Summary View and will contain information relating to the NHS debt, including the amount owed and the NHS body where the debt was incurred. The following are all outcomes available to determine whether the NHS debt is still outstanding or the NHS debt has been repaid or cancelled:
- debt outstanding
- debt defaulted – debt still outstanding
- debt repaid
- debt cancelled by NHS
- repayment arrangement
Checking If a Debt Has Been Repaid
Where a debt is identified, the caseworker may contact an applicant and request evidence that the outstanding debt has been paid or seek confirmation as to whether a repayment plan has been agreed with the relevant NHS body. It is important to note that schedules of payment fall to be agreed with the NHS body or the debt collection body representing the NHS body and the applicant, not with the Home Office.
A failure to respond to such a request may result in an assessment of the application based on the available evidence. It is therefore best to consider addressing any potential debt in an application and provide evidence of any agreement. You may wish to seek advice in this regard.
What If There Is Debt?
NHS debt is a discretionary refusal and so an individual case by case assessment is required. If compassionate or other circumstances are raised, the caseworker will consider any representations made. The guidance states:
Relevant factors may include:
- the applicant’s circumstances, for example are they in the UK or seeking to return to the UK, and for what purpose
- family circumstances (such as the need to stay in the UK to care for a family member i.e., parent to a British child)
- illness of applicant (which may affect ability to work to repay debt)
- financial circumstances (i.e., whether the applicant could repay the debt or agree a repayment plan)
- other compelling or compassionate circumstances.
Linked Dependant Application
Potential refusal of an application will depend on who owes the NHS debt. The guidance reads:
A linked dependant is a person who is applying for entry clearance or permission to stay (including settlement) at the same time as the main applicant. If you refuse the main applicant because they owe an NHS debt, you must also reject as invalid any linked dependants applying at the same time. This is on the basis that they do not meet requirements of being a dependant of a person who has, or is being granted, entry clearance or permission to stay: see guidance on Validity, variation and void applications.
However, if you refuse an application from a linked dependant because the dependant owes an NHS debt, you must not refuse the main applicant on the basis of the dependant’s debt.
It is important to remember that NHS debt forms a discretionary basis for refusal and is not automatic. You may therefore wish to seek advice before making any application to which any NHS debt may be relevant.
Contact our Immigration Barristers
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