Sun, 09 Oct 2011
By Ramby De Mello
Visitors from outside the European Union seeking to enter or remain in the UK for private medical treatment have to meet a number of requirements set out in the Immigration Rules including proving that they can pay for their private medical treatment. Treatment under the NHS is governed by the National Health Service (Charges to Overseas Visitors) Regulations 2011 which came into force on the 1st August 2011.
These Regulations consolidate the National Health Service (Charges to Overseas Visitors) Regulations 1989, which provide for the making and recovery of charges for relevant services provided under the National Health Service Act 2006 to certain persons not ordinarily resident in the United Kingdom (overseas visitors). Anyone who is deemed to be ordinarily resident in the UK is entitled to free NHS hospital treatment in England. “Ordinary residence” is a common law concept interpreted by the House of Lords in the case of R -v- Barnet LBC ex parte Shah  1 All ER 226 as someone who is living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, with an identifiable purpose for their residence here which has a sufficient degree of continuity to be properly described as settled.
The position is that the relevant health services provided must be free of charge but there are exceptions to the general rule, namely that the NHS Trust shall make and recover charges from an overseas visitor i.e. a person not ordinarily resident in the United Kingdom. An "overseas visitor" means a person not ordinarily resident in the United Kingdom and is accordingly liable to pay for relevant services treatment unless exempt.
The NHS body has an obligation to make and recover charges from overseas visitors when they provide them with relevant health services. “Relevant services” means those services provided under section 3(1) of the National Health Service Act 2006, excluding primary medical, dental and ophthalmic services.
The Regulations impose an obligation on a “relevant NHS body” to make and recover charges in respect of relevant services provided to an overseas visitor where it decides that no exemption provided in the Regulations applies. The relevant NHS body must make and recover charges from the person liable under the Regulations where it provides an overseas visitor with relevant services. The relevant NHS body has the responsibility to make such enquiries as it is satisfied are reasonable in all the circumstances, including in relation to the state of health of that overseas visitor when deciding whether a charge is to be made.
Exemptions from charges apply where the NHS body has determined that an overseas visitor is exempt from being charged for relevant services or that the overseas visitor has received relevant services from a relevant NHS body as part of a course of treatment. If prior to the course of treatment being completed it determines that that overseas visitor is no longer exempt from being charged for relevant services then it may not make and recover charges in respect of relevant services provided as part of that course of treatment during a period where the overseas visitor has remained in the United Kingdom without absence unless the NHS body determines that the person is exempt from being charged for relevant services as a result of receiving fraudulent or misleading information.
The overseas visitor will be liable for the payment of such charges unless the overseas visitor works on a ship, vessel or aircraft or where the overseas visitor is a child under the age of 16. In these cases the employer or parent may be liable to pay the charges.
Repayments are to be made to the overseas visitor or other person liable to pay a charge where a charge has been made and recovered which is not payable under the Regulations.
The Regulation sets out services provided to overseas visitors which are exempt from charges, including accident and emergency services, family planning services, and treatment for diseases listed in Schedule 1 to the Regulations (diseases for which no charge is to be made for treatment such as cholera).
No charge may be made or recovered for accident and emergency services, whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere, but not including any services provided after the overseas visitor has been accepted as an in-patient; or at an outpatient appointment.
The Regulations provides an exemption for an overseas visitor who:- has lawfully resided in the United Kingdom for at least twelve months; is present in the United Kingdom for a specified purpose, such as employment; is entitled to the services under European Union law.
No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has resided lawfully in the United Kingdom for a period of not less than 12 months immediately preceding the time when such services are provided but this will not apply to a person who has leave to enter the United Kingdom for the purpose of undergoing private medical treatment. Where a person meets the residence qualification on a date during a course of treatment for which charges could have been made prior to that date, no charge may be made in respect of services subsequently received.
The Regulations exempt an overseas visitor who is present in the United Kingdom (or designated areas) for a specified purpose (that is (a)engaging in employment with an employer which has its principal place of business in the United Kingdom or which is registered in the United Kingdom as a branch of an overseas company; (b)being a self-employed person whose principal place of business is in the United Kingdom; (c)working as a volunteer with a defined voluntary organisation is pursuing a specified full time course of study.)
There are exemptions for an overseas visitor who is entitled to the services in question by virtue of an enforceable European Union right (such as EU workers or family members of such workers).
There are exemptions for services provided to an overseas visitor where those services are covered by the terms of a reciprocal agreement made between the United Kingdom and a country or territory listed in Schedule 2.
No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has been granted temporary protection, asylum or humanitarian protection under the immigration rules; or who has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under those rules; or is currently supported under section 4 or 95 of the Immigration and Asylum Act 1999; or who is a child, taken into local authority care under the Children Act 1989.; or where there are reasonable grounds to believe that person is a victim of human trafficking.
Where an overseas visitor who has been granted leave to enter the United Kingdom for a course of treatment applies for exemption from charges for relevant services, and the Secretary of State determines that exceptional humanitarian reasons justify it, then no charge may be made or recovered in respect of that overseas visitor and that course of treatment. Such a determination may only be made by the Secretary of State if the Secretary of State is satisfied in the case of that overseas visitor that the treatment specified is not available in that person’s home country; that the necessary arrangements have been made for temporary accommodation for that person, any authorised companion and any authorised child for the duration of the course of treatment; and the necessary arrangements have been made for the return of that person, any authorised companion and any authorised child to their home country when the course of treatment is completed.
A refusal by the Secretary of State to make a determination or to provide a favourable determination may be susceptible to judicial review.
Exemptions from charges also extend to Diplomats, NATO forces long term visits by United Kingdom pensioners; war pensioners and armed forces compensation scheme payment recipients; Her Majesty’s United Kingdom Forces, Crown servants, and others employed by certain public bodies; former United Kingdom residents working overseas, missionaries, persons imprisoned or detained under specified enactments and employees on ships.
In certain circumstances an overseas visitor will be exempt from charges for relevant services the need for which arose during the overseas visitor’s visit to the United Kingdom: e.g. one who is in receipt of a pension or benefit under the Social Security Contributions and Benefits Act 1992 or the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and has at any time had not less than ten years continuous lawful residence in the United Kingdom; or not less than ten years continuous service as a Crown servant employed by, or in the service of, the Government of the United Kingdom; or been resident in an EEA state, Switzerland or in a country or territory specified in Schedule 2 (except Israel) and has at any time had not less than ten years continuous lawful residence in the United Kingdom; or is a national of a state which is a contracting party to the European Convention on Social and Medical Assistance 1954 or the European Social Charter 1961 and is— (i)lawfully present in the United Kingdom; and (ii)without sufficient resources to pay the charge; (d) an authorised child or an authorised companion; or (e)an individual who is in the United Kingdom as part of the “Games Family”, as defined in Schedule 3, during the relevant period.
The Regulation sets out the basis on which a family member of an overseas visitor may also be exempt from charges for relevant services.
Where the Secretary of State has been invited to exercise his discretion to dispense with a charge then his decision is reviewable on traditional public law principles.
The position before these Regulations came into force was considered by the Court in R(A)-v-Secretary of State for Health  EWCA Civ 225  1 WLR 279. The Court in that case was concerned with failed asylum seekers. The Court held that the purpose of the 2006 Act was to provide a health service for the “people of England”, and the beneficiaries therefore had to have a legitimate connection with this country and did not include those who ought not to have been here such as failed asylum seekers. The Court concluded with reference to the discretion vested in the NHS to provide treatment to those present here:-
“It would seem, therefore, that under the statutory scheme the hospital is required to charge overseas visitors but it does have a discretion it can exercise: the hospital can choose to treat or it can choose not to treat those who cannot or will not pay. The Secretary of State accepts and seeks a declaration to reinforce the discretion to treat for example those in immediate need. The respondent accepts that at the extreme end of the spectrum, if the hospital is faced with a wealthy overseas visitor who has no urgent need for treatment and could at any time return home and be treated there, then it would clearly not be very sensible if (faced with a refusal to pay charges) the Trust have to provide the treatment and then to try to pursue the individual in their home jurisdiction. In that instance the hospital could legitimately conclude that it was not necessary to provide services for that particular patient. The group of failed asylum seekers here are at the other end of the spectrum, being unable to pay and not being able to return home 
My conclusion is that it is implicit in the Guidance that there is a discretion to withhold treatment but there is also discretion to allow treatment to be given when there is no prospect of paying for it. How that discretion is to be exercised may depend on how long the failed asylum seeker will remain at large and the plight of those who cannot return should be identified and clarified in the Guidance.” 
There are different rules which apply to EU nationals accessing NHS treatment in the UK and for those UK nationals accessing medical treatment in other member states. This topic will be covered another time.