Guidance

Healthcare entitlements for non-UK detainees being released into the community

Updated 6 August 2019

Background

The 2018 Stephen Shaw Review set out various recommendations for vulnerable people in detention and contains the following recommendation:

Recommendation 23 – The Home Office and Department of Health and Social Care should prepare a joint communication to IRC healthcare teams clearly laying out health-based entitlements for former detainees released into the community.

The following guidance is designed to explain the rules around entitlement and access to NHS care by people who are moving from Immigration Removal Centres (IRCs) into the community.

This guidance covers the arrangements for England. More about the provisions in Scotland and Northern Ireland can be found in Annex 2.

Summary

The GP is usually the first point of access for healthcare.

Any person can register with a GP practice as an NHS patient. There is no charge for any primary care (such as GP services, community pharmacy and dental services), other than charges that a resident patient would pay – for example, charges for prescriptions and dentistry services in England.

Primary care that is provided in the community setting is never chargeable, again, except for any charges that residents would also have to pay. Please note that the arrangements for accessing GP services are different in Northern Ireland.

The NHS website has more information about how to find and register for health services:

• find and register with a GP
• find and register with a dentist
• find and register with an optician

While people who are not ‘ordinarily resident’ may be chargeable for NHS secondary care, there are several NHS services, conditions and groups of people that are exempt from charge. These are detailed in Annex 1.

There are no charges for services that are provided in Accident & Emergency departments in hospitals, nor for the diagnosis and treatment of sexually transmitted infections (STIs) and infectious diseases, on public health grounds.

Vaccinations for one or more of the conditions covered by the public health exemption should be arranged through the healthcare team at the IRC before the person leaves, if required.

‘Relevant services’ that are provided in the community setting are chargeable where no exemption applies. Relevant services are accommodation, services or facilities which are provided, or whose provision is arranged, under the National Health Service Act 2006, except for primary medical or dental services or services equivalent to these provided under that act. This means that:

• primary care services provided both at a GP practice or in the community are free to all
• secondary care services provided at a hospital or elsewhere are chargeable to overseas visitors where no exemption from charge category applies

The care providers will advise of any charges for this care, where appropriate. Groups such as asylum seekers and some supported failed asylum seekers are exempt from charge for all their care.

If a person’s exemption status changes, for example because of a change to their immigration status, so that they become chargeable for their care, a course of treatment that is already underway will continue free of charge until it concludes. This is known as the ‘easement clause’. New courses of treatment may be chargeable.

A mental health assessment can be organised by the GP. The treatment will not be chargeable if it is part of a course of treatment that is already underway.

If a person has received mental health treatment under Section 48 of the Mental Health Act or for serious mental illness in an IRC, they can continue treatment in a mental health service. This will be arranged by the doctors in the IRC before they leave. The person should also see a GP.

Treatment will be exempt from charge if the condition has been caused by:

• torture
• female genital mutilation
• domestic violence
• sexual violence

If the patient is chargeable for their care, where a clinician has decided that their need for care is immediately necessary or urgent (which means, in this context, that it should not wait until the patient can reasonably be expected to leave the UK) then the care will not be withheld pending payment. Maternity care will never be withheld pending payment. Otherwise payment is required prior to treatment.

After the patient has had the treatment, they will be advised of the cost and how to pay if they are able. They are likely to be given the option of setting up a repayment plan. If they do not pay for treatment they have been charged for, and do not agree a repayment plan, their debt may be reported to the Home Office if it is over £500 and has been outstanding for over 2 months. This may affect a future immigration application.

More information about charges for healthcare and help with health costs in England can be found on the NHS website. You can find details of who is entitled to:

• free dental care
• free NHS sight tests and NHS optical vouchers

As stated in the Detention Centre Rules 2001, members of the healthcare team should ensure that all medical records relating to a detained person are forwarded as appropriate following the person’s transfer to another detention centre or a prison or on discharge from the detention centre.

Regulatory background

The rules in England around charges for NHS services and access to these services by overseas visitors and migrants are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2015, as amended (by the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017). You can find supporting information and the full guidance to the regulations here:

• guidance on implementing the overseas visitor charging regulations
• NHS cost recovery programme website

Other sets of regulations apply to overseas visitors when they access the NHS in Scotland, Wales and Northern Ireland.

The NHS is a residence-based system. In other words, access without charge to NHS services is principally based on being ‘ordinarily resident’ in the UK. A person will be ‘ordinarily resident’ in the UK when that residence is lawful, adopted voluntary, and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration.

Nationals of countries outside the European Economic Area (EEA), subject to immigration control, must also have indefinite leave to remain in the UK to be ‘ordinarily resident’ here.

A person who is ‘ordinarily resident’ in the UK is not chargeable for NHS services, but a person who is not ‘ordinarily resident’ (known as an ‘overseas visitor’) and for whom no exemption from charge categories apply will be chargeable for NHS-funded secondary care services.

A person who is moving from an IRC may not be considered to be ‘ordinarily resident’’, but may become so later if they are granted indefinite leave to remain. There may also be other exemptions from charge that apply; more information on exempt services, conditions and cohorts of patients is set out in Annex 1.

From October 2017, the requirement to recover costs from chargeable patients where ‘relevant services’ have been provided to them and no exemption applies was extended to cover non-NHS providers of NHS funded secondary care, including community providers.

Easement clause

If a previous IRC resident’s immigration status changes, they may become chargeable for their NHS care. However, under the ‘easement clause’, in certain circumstances a course of treatment that is already underway when the person’s status changes will continue free of charge until that course of treatment concludes or the person leaves the country. The following circumstances cover situations in which the easement clause might apply:

• an asylum seeker’s application, including all appeals, is rejected
• a person stops receiving section 95 support from the Home Office
• a failed asylum seeker stops receiving support from the Home Office under section 4(2) of the 1999 Act, or section 21 or Part 1 support from a local authority
• a person ceases to be a child looked after by a local authority
• a prisoner is released from prison or immigration detention
• a person is no longer detained in a hospital or liable to court ordered treatment
• a person suspected of being a victim of modern slavery by a competent authority (having issued a ‘reasonable grounds’ decision), is then found by the competent authority not to be a victim of modern slavery

The ‘easement clause’ only applies to courses of treatment that are already underway. It is a clinical decision what constitutes a course of treatment. New courses of treatment may be chargeable but no treatment that is urgent or immediately necessary will be withheld pending payment.

The decision about whether a patient is chargeable for services or not will be made by the NHS service provider based on the rules about charging for NHS services.

Further information

This guidance cannot cover every situation in which people leaving IRCs and accessing NHS services may be chargeable. It aims to cover the main points of the charging regulations and the implications that the regulations may have on those seeking care.

For further information about the arrangements in England, please refer to the NHS cost recovery programme information or contact the NHS cost recovery programme team in the Department of Health and Social Care at nhscostrecovery@dhsc.gov.uk.

Patients who are leaving IRCs who need hospital treatment can speak to specialist staff based in hospital trusts, usually called Overseas Visitor Managers, who will be able to provide information.

Alternatively, each hospital has a free Patient Advice and Liaison Service (PALS) offering healthcare information. PALS can assist with health-related questions and help resolve concerns or problems when using the NHS. The GP, hospital or NHS 111 service can provide more information about the nearest PALS.

Annex 1 – Services, conditions and individuals or groups exempt from charge

Exempt services

The following services are free at the point of use for all patients. A charge cannot be made or recovered from any overseas visitor for:

• accident and emergency (A&E) services – this includes all A&E services provided at an NHS hospital, for example those provided at an A&E department, walk-in centre, minor injuries unit or urgent care centre. This does not include those emergency services provided after the overseas visitor has been accepted as an inpatient, or at a follow-up outpatient appointment, for which charges must be levied unless the overseas visitor is exempt from charge in their own right
• family planning services (does not include termination of pregnancy)
• diagnosis and treatment of specified infectious diseases
• diagnosis and treatment of sexually transmitted infections
• palliative care services provided by a registered palliative care charity or a community interest company
• treatment required for a physical or mental condition caused by the following (except where the overseas visitor has travelled to the UK seeking that treatment):
  • torture
  • female genital mutilation
  • domestic violence
  • sexual violence

Treatment for a condition caused by torture, female genital mutilation, domestic or sexual violence is not an exempt service in the Northern Ireland legislation.

Exempt categories of person

Various categories of vulnerable people are exempt from charge for NHS services, including:

• refugees (those granted asylum, humanitarian protection or temporary protection under the immigration rules) and their dependents
• asylum seekers (those applying for asylum, humanitarian protection or temporary protection whose claims, including appeals, have not yet been determined), and their dependents
• individuals receiving support under section 95 of the Immigration and Asylum Act 1999 (the 1999 Act) from the Home Office
• failed asylum seekers, and their dependents, receiving support under section 4(2) of the 1999 Act from the Home Office or those receiving support from a local authority under part 1 (care and support) of the Care Act 2014 or section 35 or 36 of the Social Services and Well-being (Wales) Act 2014, by the provision of accommodation
• children who are looked after by a local authority
• victims, and suspected victims, of modern slavery as determined by a designated competent authority, such as the UK Human Trafficking Centre or the Home Office. This includes their spouse or civil partner and any children under 18, provided they are lawfully present in the UK
• prisoners and immigration detainees

Not all people who are in vulnerable positions are exempt from charge, but the NHS must always provide immediately necessary or urgent care, including maternity care, to any chargeable patient, regardless of whether they have yet paid for that care.

Exempt conditions

Treatment for the following conditions is exempt from charge, for public health reasons:

• acute encephalitis
• acute poliomyelitis
• anthrax
• botulism
• brucellosis
• cholera
• diphtheria
• enteric fever (typhoid and paratyphoid fever)
• food poisoning
• haemolytic uraemic syndrome (HUS)
• human immunodeficiency virus (HIV)
• infectious bloody diarrhoea
• invasive group A streptococcal disease and scarlet fever
• invasive meningococcal disease (meningococcal meningitis, meningococcal septicaemia and other forms of invasive disease
• legionnaires’ disease
• leprosy
• leptospirosis
• malaria
• measles
• Middle East respiratory syndrome (MERS) – please note that MERS is not included in the list of exempt conditions in Northern Ireland
• mumps
• pandemic influenza (defined as the ‘pandemic phase’), or influenza that might become pandemic (defined as the ‘alert phase’) in the World Health Organization’s Pandemic Influenza Risk Management Interim Guidance
• plague
• rabies
• rubella
• severe acute respiratory syndrome (SARS)
• smallpox
• tetanus
• tuberculosis
• typhus
• viral haemorrhagic fever (which includes Ebola)
• viral hepatitis
• whooping cough
• yellow fever

Annex 2 – Arrangements in Scotland and Northern Ireland

Scotland

Arrangements for overseas visitors and their access to healthcare in Scotland are similar to those in England. Access to services without charge is based on ordinary residence, as in England, with exemptions for certain groups and conditions. The charging regulations in Scotland apply only to hospital care; and urgent or immediately necessary care will never be withheld, even if it is chargeable.

As in England, GP registration is free to all in Scotland. Read more information on GP registration in Scotland.

Further information about overseas visitors and the NHS in Scotland is available on the Scottish government website.

More information for individuals in Scotland is available from NHS Inform. They also run a telephone helpline – 0800 22 44 88 (textphone 18001 0800 22 44 88) – which is open every day between 8am and 10pm.

Northern Ireland

In Northern Ireland, arrangements for overseas visitors accessing health services are covered by charging regulations and accompanying guidance.

In Northern Ireland, GP services are chargeable for overseas visitors and residents of the Republic of Ireland. These cohorts can register with a GP in Northern Ireland and receive treatment but are required to pay for any care received.

Information for individuals about accessing healthcare in Northern Ireland is available on the NI Direct website.