Getting personal - Carer shortages under the “new” points based immigration system
The UK’s National Health Service was created in 1948 as a comprehensive service which was free of charge and available to all. Charges were introduced a few years later for prescriptions, dental treatments and glasses, but most NHS services are still free.
Charges for overseas visitors
In the 1980s a charging scheme was introduced for overseas visitors. It only affected people who were not ordinarily resident in the UK. People living in the UK on long-term visas were not required to pay.
The scheme has recently been toughened up. In April 2015 the Immigration Health Surcharge was introduced. Since then people applying for a visa for more than six months have had to pay an upfront surcharge of £200 for each year of the visa (£150 per year for student and youth mobility scheme visas) when they apply for their visa in return for free NHS treatment.
In October 2017 it became a requirement for hospitals to make overseas visitors pay for their treatment in advance, unless doing so would prevent or delay the provision of immediately necessary or urgent treatment, such as maternity care. If the person cannot pay and the treatment is not immediately necessary or urgent, the hospital is not allowed to treat them.
If the person cannot pay and the treatment is provided anyway (on the basis that it is immediately necessary or urgent) the person will have a debt to the NHS. If the debt is £500 or more the Home Office will normally refuse to extend the person’s visa or grant them a new visa.
The rules are complicated. The Department of Health & Social Care guidance on the charging scheme is 117 pages long. This note is about NHS services in England. There is separate guidance for services in Scotland, Wales and Northern Ireland.
NHS services which are free for everyone
Some NHS services are still free for everyone, including overseas visitors. These include:
Who has to pay for NHS hospital treatment?
Other services – most types of non-emergency hospital treatment – fall into the charging regime.
The basic rule is that overseas visitors have to pay for this treatment.
An overseas visitor is someone who is ‘not ordinarily resident’ in the UK.
‘Ordinary residence’ means living in the country lawfully and ‘for settled purposes as part of the regular order of his life for the time being’. There is no minimum period of residence for ordinary residence. A person can become ordinarily resident in the UK from the moment they arrive. It is also possible to be ordinarily resident in more than one country at a time.
People who have leave to enter or remain in the UK for a limited period are automatically considered not to be ordinarily resident in the UK. The same goes for people who require leave to enter or remain in the UK but do not have it.
This means the term ‘overseas visitor’ catches a much wider group of people than the ‘visitor’ category in UK immigration law. As well as covering people who live outside the UK and are visiting, it includes anyone who is in the UK illegally, or who has a time-limited visa as opposed to indefinite leave to remain.
To make things even more complicated, some overseas visitors are exempt from the charging scheme. They include people who have paid the Immigration Health Surcharge, or who have not paid it because they applied for their visa before the surcharge was introduced on 6 April 2015.
As a result there are three groups of people for NHS charging purposes:
The first two groups qualify for free non-emergency hospital treatment on the NHS. The third group does not.
People who qualify for free NHS hospital treatment
The following main groups of people qualify for free treatment on the NHS (apart from things which everyone has to pay for, such as prescriptions and dentistry):
People who are ordinarily resident in the UK
Overseas visitors who are exempt
People who have to pay for NHS hospital treatment
The following people are overseas visitors who are not exempt from the charging scheme. This means that they do not qualify for free hospital treatment on the NHS (except services which are always free, such as treatment in hospital A&E departments):
Not everyone is eligible for free NHS hospital treatment. The following people need to take action to make sure that they are covered while they are in the UK.
 The National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238
 The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017, SI 2017/756
 Immigration Rules (HC395) paras 320(22), 322(12)
 Shah v Barnet London Borough Council  2 AC 309
 Section 39 Immigration Act 2014
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