The National Health Service (Charges to Overseas Visitors) Regulations 2015

PART 1 E+W Introduction

Citation and commencement E+W

1.  These Regulations may be cited as the National Health Service (Charges to Overseas Visitors) Regulations 2015 and come into force on 6th April 2015.

Interpretation E+W

2.  In these Regulations—

“the 1971 Act” means the Immigration Act 1971 M1 ;

“the 2006 Act” means the National Health Service Act 2006;

“the 2014 Act” means the Immigration Act 2014 M2 ;

“authorised child” means a child who—

(a)

has been granted leave to enter the United Kingdom with a parent for the purpose of the parent receiving a course of treatment in respect of which no charge may be made or recovered under regulation 17; or

(b)

is a child of an authorised companion;

“authorised companion” means a person who has been granted leave to enter the United Kingdom to accompany a person who is obtaining a course of treatment in respect of which no charge may be made or recovered under regulation 17;

“child” means a person who is under the age of eighteen;

“entry clearance” has the meaning given in section 33(1) (interpretation) of the 1971 Act M3 ;

“immigration health charge” means a charge payable under an order made under section 38 (immigration health charge) of the 2014 Act;

“immigration rules” means the rules laid before Parliament under section 3(2) (general provisions for regulation and control) of the 1971 Act;

“overseas visitor” means a person not ordinarily resident in the United Kingdom M4 ;

“parental responsibility” has the meaning given in section 3 (meaning of “parental responsibility”) of the Children Act 1989 M5 ;

“reciprocal agreement” means arrangements agreed mutually between the Government of the United Kingdom and the Government of a country or territory outside the United Kingdom for the provision of health care;

“registered dentist” has the meaning given in section 53(1) (interpretation) of the Dentists Act 1984 M6 ;

“relevant NHS body” means—

(a)

an NHS foundation trust;

(b)

an NHS trust; or

(c)

a local authority within the meaning of section 2B (functions of local authorities and Secretary of State as to improvement of public health) of the 2006 Act M7 exercising public health functions (within the meaning of that Act M8 );

“relevant services” means accommodation, services or facilities M9 which are provided, or whose provision is arranged, under the 2006 Act other than—

(a)

primary medical services provided under Part 4 (medical services);

(b)

primary dental services provided under Part 5 (dental services);

(c)

primary ophthalmic services provided under Part 6 (ophthalmic services); or

(d)

equivalent services which are provided, or whose provision is arranged, under the 2006 Act;

“ship” includes fishing vessels and hovercraft;

“treatment the need for which arose during the visit” means—

(a)

diagnosis of symptoms or signs occurring for the first time after the overseas visitor's arrival in the United Kingdom; or

(b)

treatment, provided that the overseas visitor has not travelled to the United Kingdom for the purpose of seeking that treatment, which in the opinion of a registered medical practitioner or registered dentist employed by or providing services to the relevant NHS body is required promptly for a condition which arose, or became acutely exacerbated, after the overseas visitor's arrival, or which, but for the treatment, would be likely to become acutely exacerbated,

which cannot wait until the overseas visitor can reasonably be expected to return to the overseas visitor's country of ordinary residence.

Marginal Citations

M1 1971 c. 77.

M2 2014 c. 22.

M3 The definition of “entry clearance” in section 33(1) was amended by the British Nationality Act 1981 (c. 61), Schedule 4, paragraph 2, and the Immigration Act 1988 (c. 14), Schedule, paragraph 5.

M4 The meaning of ordinary residence in section 175 of the 2006 Act was amended by section 39 (related provision: charges for health services) of the Immigration Act 2014 (c. 22) which has not yet come into force.

M5 1989 c. 41.

M6 1984 c. 24; to which there are amendments not relevant to these Regulations.

M7 Section 2B was inserted by the Health and Social Care Act 2012 (c. 7) (“the 2012 Act”), section 12.

M8 The meaning of a reference to the public health functions of local authorities is given by section 1H(5)(b) of the 2006 Act, which was inserted by the 2012 Act, section 9(1).

M9 “Facilities” is defined in s275(1) of the 2006 Act.

PART 2 E+W Provision for making and recovery of charges

Obligation to make and recover charges E+W

3.—(1) Where the condition specified in paragraph (2) is met, a relevant NHS body must make and recover charges for any relevant services it provides to an overseas visitor from the person liable under regulation 4 (liability for payment of charges).

(2) The condition is that the relevant NHS body, having made such enquiries as it is satisfied are reasonable in all the circumstances, including in relation to the state of health of that overseas visitor, determines that the case is not one in which these Regulations provide for no charge to be made.

(3) Where more than one relevant NHS body provides relevant services to an overseas visitor, each relevant NHS body must make and recover charges for the relevant services it provides to that overseas visitor in accordance with paragraph (1).

(4) A relevant NHS body that makes and recovers a charge in accordance with paragraph (1), must give or send to the person making the payment a receipt for the amount paid.

(5) Subject to paragraph (6), where—

(a) a relevant NHS body has determined that an overseas visitor is exempt from being charged for relevant services under these Regulations, except where the overseas visitor is exempt from being charged by virtue of—

(i) regulation 10 (immigration health charge);

(ii) regulation 11 (overseas visitors who have made applications for entry clearance or leave to remain prior to the commencement of the immigration health charge); or

(iii) regulation 25(3) (family members of overseas visitors – children born to a parent exempt under regulation 10 or 11);

(b) the overseas visitor has received relevant services from a relevant NHS body as part of a course of treatment; and

(c) prior to the course of treatment being completed, a relevant NHS body has determined that the overseas visitor is no longer exempt from being charged for relevant services under these Regulations,

a relevant NHS body may not make and recover charges under paragraph (1) 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.

(6) Paragraph (5) does not apply where a relevant NHS body has determined that a person is exempt from being charged for relevant services as a result of that body receiving fraudulent or misleading information.

Liability for payment of charges E+W

4.—(1) The person liable to pay charges under these Regulations is, unless paragraph (2), (3) or (4) applies, the overseas visitor in respect of whom the relevant services are provided.

(2) Where—

(a) an overseas visitor is employed or engaged or works in any capacity on board a ship and whose normal place of work is on board a ship; and

(b) that overseas visitor is present in the United Kingdom in the course of that employment, engagement or work,

the person liable to pay charges under these Regulations is the shipowner of the ship on which the overseas visitor is employed, engaged or works.

(3) Where an overseas visitor is an air crew member and is present in the United Kingdom in the course of that employment, the person liable to pay charges under these Regulations is the employer of that overseas visitor.

(4) Where an overseas visitor is a child, the person liable to pay charges under these Regulations is the person with parental responsibility for that child.

(5) In this regulation—

“air crew member” means any person employed or engaged in an aircraft in flight on the business of the aircraft;

“shipowner” has the meaning given in regulation 2(1) (interpretation) of the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc) Regulations 2014 M10 .

Marginal Citations

M10 S.I. 2014/1613.

Repayment of charges made and recovered by relevant NHS bodies E+W

5.—(1) Where a sum has been paid in respect of a charge for relevant services by or on behalf of a person who—

(a) at the time that the relevant services were provided was an overseas visitor in respect of whom these Regulations provide for no charge to be made or recovered; or

(b) did not receive the relevant services for which the charge was payable,

a claim for repayment of the sum may be made in accordance with this regulation.

(2) A person making a claim for repayment (“the claimant”) of a sum must provide to the relevant NHS body—

(a) the receipt for payment of the sum;

(b) a declaration in support of the claim signed by or on behalf of the claimant; and

(c) such other evidence in support of the declaration as the relevant NHS body may require.

(3) The relevant NHS body must repay to the claimant the amount of the sum if it is satisfied that the sum was not payable by virtue of these Regulations.

(4) For the purposes of this regulation, the relevant NHS body is the one to which the sum was paid.

Provision relating to recovery of charges in respect of refugees and victims of human trafficking E+W

6.—(1) This paragraph applies to an overseas visitor who—

(a) received relevant services from a relevant NHS body;

(b) subsequent to receiving the relevant services, has become an overseas visitor who is exempt from charges under—

(i) regulation 15(a) (refugees, asylum seekers, supported individuals and looked after children); or

(ii) regulation 16 (victims of human trafficking); and

(c) at the time that the overseas visitor received the relevant services—

(i) where paragraph (1)(b)(i) applies, was in the United Kingdom for the purpose of making an application to be granted temporary protection, asylum or humanitarian protection under the immigration rules, but had not made that application; or

(ii) where paragraph (1)(b)(ii) applies, was a person to whom regulation 16 applies but had not yet been identified as such.

(2) An overseas visitor to whom paragraph (1) applies is to be treated for the purposes of these Regulations as if, at the time that the relevant services were provided, the overseas visitor was an overseas visitor in respect of whom no charge may be made or recovered for the relevant services.

(3) A relevant NHS body which, in respect of an overseas visitor to whom paragraph (1) applies, has—

(a) yet to make charges under regulation 3 (obligation to make and recover charges), must not make the charges;

(b) made charges under regulation 3 but has yet to recover the charges, must not recover the charges; or

(c) made charges under regulation 3 and received payment in respect of the charges, must repay any sum paid in respect of the charges in accordance with regulation 5 (repayment of charges made and recovered by relevant NHS bodies).

Charges imposed on overseas visitors E+W

7.—(1) The relevant NHS body must calculate charges made under these Regulations in accordance with this regulation.

(2) Where the overseas visitor is ordinarily resident in another EEA state or Switzerland the charge payable in respect of a relevant service provided to the overseas visitor shall be calculated in the same way as provided for by regulation 13(1) (NHS charges) of the National Health Service (Cross-Border Healthcare) Regulations 2013 M11 .

(3) In any other case, the charge payable in respect of each relevant service provided to an overseas visitor shall be equal to the tariff for that relevant service multiplied by 150 per cent.

(4) In this regulation “the tariff” has the meaning set out in paragraphs (5) to (8), subject to paragraphs (9) to (12).

(5) Unless paragraph (6) applies, where a relevant service is specified in the national tariff under section 116(1)(a) (national tariff) of the 2012 Act, the tariff for the provision of that service to an overseas visitor is such price as is determined in accordance with the national tariff on the basis of the national price specified in the national tariff for that service in relation to that relevant NHS body including any applicable modification referred to in paragraph (10).

(6) Where—

(a) a relevant NHS body provides a relevant service to an overseas visitor that is included in a bundle of services to which a pathway payment applies in accordance with the national tariff;

(b) that relevant service constitutes part, but not all, of the bundle of services; and

(c) the relevant NHS body is unable to determine the price of that relevant service as an individual service within the bundle of services to which the pathway payment relates,

the tariff is such reasonable price for the provision of the relevant service that the NHS body determines having had regard to the matters set out in paragraph (7).

(7) The matters to which the relevant NHS body must have regard for the purposes of determining the tariff for a relevant service under paragraph (6) are—

(a) the amount of the pathway payment which would be payable to the relevant NHS body in accordance with the national tariff, by the commissioner with responsibility for commissioning services in respect of the overseas visitor to whom the relevant service was provided, if that overseas visitor were ordinarily resident in the United Kingdom;

(b) the relevant service that the overseas visitor received as a proportion of the bundle of services to which the pathway payment applies; and

(c) the complexity of the relevant service provided to the overseas visitor.

(8) Where a relevant service is not specified in the national tariff under section 116(1)(a) of the 2012 Act, the tariff is such price for the provision of that service as is determined in accordance with the rules provided for in the national tariff for that purpose including any applicable modification referred to in paragraph (10).

(9) The following variations to the national price of a relevant service made under the 2012 Act shall not apply to the determination of the national price for that relevant service for the purpose of paragraph (5)—

(a) a variation agreed to by the commissioner of the service and the relevant NHS body that is providing that service in accordance with rules made under section 116(2);

(b) a variation specified in the national tariff under section 116(4)(a), except for a variation—

(i) to reflect regional cost difference; or

(ii) to reflect patient complexity.

(10) An applicable modification is any modification to the price, as determined in accordance with the national tariff, of the relevant service where that modification is—

(a) made in accordance with an agreement made under section 124(1) of the 2012 Act; or

(b) determined by Monitor under section 125(1) of the 2012 Act.

(11) For the purposes of determining the tariff for a relevant service provided to an overseas visitor—

(a) under paragraph (5) or (8) (whichever is applicable), a modification of the kind specified in paragraph (10) will apply to the relevant service only when the modification applies to the price payable to the relevant NHS body by the commissioner with responsibility for commissioning services in respect of that overseas visitor; and

(b) under paragraph (8), an agreement between a commissioner and the relevant NHS body made in accordance with the rules will be relevant for the determination of the tariff only when the commissioner which is party to the agreement is the commissioner with responsibility for commissioning services in respect of that overseas visitor.

(12) Where rules made under section 116(6) provide for which specification of a relevant service is to apply in a particular case or cases of any particular description, the relevant NHS body must comply with those rules when calculating charges under this regulation for that relevant service.

(13) For the purposes of this regulation—

“the 2012 Act” means the Health and Social Care Act 2012 M12 ;

“national price” has the meaning given in section 115(1) (price payable by commissioners for NHS services) of the 2012 Act;

“national tariff” is the document known as the national tariff published by Monitor under section 116(1) of the 2012 Act M13 ;

“the rules” mean the rules provided for in the national tariff under section 116 and 117 (the national tariff: further provision) of the 2012 Act.

(14) Nothing in this regulation prevents a relevant NHS body from obtaining a deposit or full payment in advance in respect of relevant services to be provided to an overseas visitor in respect of whom charges are payable under these Regulations.

Marginal Citations

M11 S.I. 2013/2269.

M12 2012 c. 7.

M13 The 2014/15 national tariff is published on the following website: https://www.gov.uk/government/publications/national-tariff-payment-system-2014-to-2015 or available from the Pricing Team, Monitor, 3rd Floor Wellington House, 133-155 Waterloo Road, London SE1 8UG.

PART 3 E+W Relevant services exempt from charges

Interpretation of this Part E+W

8.—(1) In this Part—

“female genital mutilation” means the excision, infibulation or other mutilation (collectively referred to as mutilation) of the whole or any part of a female's labia majora, labia minora or clitoris where—

(a)

that mutilation constituted an offence under the Female Genital Mutilation Act 2003 M14 (“the 2003 Act”);

(b)

if the mutilation was performed prior to the coming into force of the 2003 Act, that mutilation would have constituted an offence under the 2003 Act if the Act had been in force at the time the mutilation was performed; or

(c)

if the mutilation was performed outside the United Kingdom but did not constitute an offence under the 2003 Act, that mutilation would have constituted an offence under the 2003 Act had it been performed in the United Kingdom;

“girl” includes woman;

“torture” has the meaning given in Article 1(1) of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (agreed in New York on 4th February 1985) M15 .

(2) The reference to treatment in regulation 9(f) includes—

(a) any subsequent or on-going treatment provided to an overseas visitor for any condition, including a chronic condition, that is directly attributable to the torture, female genital mutilation, domestic violence or sexual violence; and

(b) in the case of female genital mutilation, any antenatal, perinatal and postpartum treatment provided to an overseas visitor the need for which is directly attributable to the mutilation.

Marginal Citations

M14 2003 c. 31.

M15 Cm 1775. The Convention entered into force in respect of the United Kingdom on 7th January 1989.

Relevant services exempt from charges E+W

9.  No charge may be made or recovered in respect of any of the following relevant services provided to an overseas visitor—

(a) accident and emergency services, but not including any services provided—

(i) after the overseas visitor has been accepted as an in-patient at a hospital M16 ; or

(ii) at an outpatient appointment;

(b) services provided otherwise than at, or by staff employed to work at, or under the direction of, a hospital;

(c) family planning services;

(d) services provided for the diagnosis and treatment of a condition listed in Schedule 1;

(e) services provided for the diagnosis and treatment of sexually transmitted infections;

(f) services provided for the treatment of a condition caused by—

(i) torture;

(ii) female genital mutilation;

(iii) domestic violence; or

(iv) sexual violence,

provided that the overseas visitor has not travelled to the United Kingdom for the purpose of seeking that treatment.

Marginal Citations

M16 “Hospital” is defined in section 275(1) of the 2006 Act.

PART 4 E+W Overseas visitors exempt from charges

Immigration health charge E+W

10.—(1) In this regulation “ relevant period” means—

(a) where—

(i) an immigration health charge is payable M17 ;

(ii) an exemption from paying an immigration health charge applies as a consequence of any exemption provided for in an order made under section 38 (immigration health charge) of the 2014 Act;

(iii) the Secretary of State has exercised discretion to reduce or waive all or part of an immigration health charge in accordance with such an order; or

(iv) the Secretary of State has exercised discretion to refund part, but not all of an immigration health charge paid under such an order,

the period of leave to enter or remain in the United Kingdom which is granted to the overseas visitor, or has effect on their arrival in the United Kingdom, in respect of the application for entry clearance or leave to remain to which the immigration health charge, exemption, reduction or waiver relates; and

(b) in a case where the overseas visitor's leave to enter or remain in the United Kingdom is extended by virtue of—

(i) section 3C (continuation of leave pending variation decision) M18 ; or

(ii) section 3D (continuation of leave following revocation) M19 ,

of the 1971 Act, the period in respect of which leave is extended under those sections.

(2) No charge may be made or recovered under these Regulations in respect of any relevant services provided during the relevant period to an overseas visitor in respect of whom—

(a) an immigration health charge has been paid;

(b) an exemption from paying such an immigration health charge applies, unless paragraph (3) applies;

(c) a reduction or waiver from paying such an immigration health charge applies; or

(d) a refund for part, but not all, of an immigration health charge has been made,

in accordance with an order made under section 38 of the 2014 Act.

(3) This paragraph applies where a person is exempt from payment of an immigration health charge under an order made under section 38 of the 2014 Act by virtue of having made an application—

(a) for entry clearance where, if granted in accordance with the immigration rules, the entry clearance would have effect on arrival in the United Kingdom as leave to enter for 6 months or less, or where the leave to enter which may be granted pursuant to that entry clearance would be for 6 months or less if granted in accordance with the immigration rules; or

(b) for entry clearance under Part 2 (visitors to the UK) of the immigration rules.

Marginal Citations

M17 It is anticipated that an order will be made under section 38 of the Immigration Act 2014 to be in force on the 6th April 2015, but if that is not the case then regulations 10, 11 and 25(3) have no practical effect until such time as an order is made.

M18 1971 c. 77; section 3C was amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), section 118; the Immigration, Asylum and Nationality Act 2006 (c. 13), section 11(1) to (4); and the Immigration Act 2014 (c. 22) (the 2014 Act), Schedule 9, paragraphs 20 and 21.

M19 Section 3D was amended by the Immigration, Asylum and Nationality Act 2006, section 11(5) and the 2014 Act, Schedule 9, paragraphs 20 and 22.

Overseas visitors who have made applications for entry clearance or leave to remain prior to the commencement of the immigration health charge E+W

11.—(1) In this regulation “ relevant period” means—

(a) the period of leave to enter or remain in the United Kingdom granted to the overseas visitor in respect of the application for entry clearance or leave to remain to which paragraph (3)(a) refers; and

(b) in a case where the overseas visitor's leave to enter or remain in the United Kingdom is extended by virtue of—

(i) section 3C (continuation of leave pending variation decision); or

(ii) section 3D (continuation of leave following revocation),

of the 1971 Act, the period in respect of which leave is extended under those sections.

(2) In this regulation “relevant date” means the date of coming into force of the first order made under section 38 of the 2014 Act.

(3) No charge may be made or recovered under these Regulations in respect of any relevant services provided to an overseas visitor during the relevant period who—

(a) made an application for entry clearance or leave to remain in the United Kingdom before the relevant date and was granted leave to enter or remain in the United Kingdom or entry clearance which has effect on the overseas visitor's arrival in the United Kingdom as leave to enter or remain in the United Kingdom in respect of that application;

(b) has entered, or remained in, the United Kingdom by virtue of that leave to enter or remain; and

(c) had that application for entry clearance or leave to remain been made on or after the relevant date, would be—

(i) liable to pay an immigration health charge; or

(ii) exempt from paying an immigration health charge as a consequence of an exemption provision under an order made under section 38 of the 2014 Act, unless paragraph (4) applies.

(4) This paragraph applies where an overseas visitor—

(a) would be exempt from an immigration health charge under an order made under section 38 of the 2014 Act by virtue of having made an application of a kind described in regulation 10(3)(a) or (b) (immigration health charge); or

(b) has been granted leave to enter or remain in the United Kingdom outside the immigration rules for 6 months or less.

Overseas visitors with EU rights E+W

12.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has an entitlement to the provision of the services in question without charge under or by virtue of any of the following—

(a) regulations made under Article 48 of the Treaty on the Functioning of the European Union M20 ;

(b) an agreement entered into between the European Union and any other country; or

(c) any other enforceable EU right M21 .

Marginal Citations

M20 OJ C 326, 26.10.2012, p. 47.

M21 For the expression “enforceable EU right”, see section 2(1) of the European Communities Act 1972 (c. 68), as amended by the European Union (Amendment) Act 2008 (c. 7), section 3(3) and Schedule, Part 1.

Overseas visitors who are treated as if entitled under the Social Security Coordination Regulation E+W

13.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who would have an entitlement to the provision of the services in question under Article 27(2) of Regulation (EC) No 883/2004 M22 if the United Kingdom had opted in as described in that Article and was listed in Annex IV to that Regulation.

Marginal Citations

M22 Regulation (EC) No 883/2004 is defined in section 275(1) of the National Health Service Act 2006.

Reciprocal health care agreements E+W

14.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor where those services are provided in circumstances covered by a reciprocal agreement with a country or territory specified in Schedule 2.

Refugees, asylum seekers, supported individuals and looked after children E+W

15.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who—

(a) has been granted temporary protection, asylum or humanitarian protection under the immigration rules;

(b) has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under those rules;

(c) is currently supported under section 95 (persons for whom support may be provided) of the Immigration and Asylum Act 1999 M23 (“the 1999 Act”);

(d) has made an application to be granted temporary protection, asylum or humanitarian protection under the immigration rules which was rejected and who is supported under—

(i) section 4(2) (facilities for the accommodation of a person) of the 1999 Act M24 ; or

(ii) section 21 (duty of local authorities to provide accommodation) of the National Assistance Act 1948 M25 ; or

(e) is a child who is looked after by a local authority within the meaning of section 22(1) (general duty of local authority in relation to children looked after by them) of the Children Act 1989 M26 .

Marginal Citations

M23 1999 c. 33; section 95 was amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), section 44(1) and (6) and 50(1).

M24 Section 4 was amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), section 49; the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), section 10(1) and (6), and the Immigration, Asylum and Nationality Act 2006 (c. 13), section 43(7).

M25 1948 c. 29. Relevant amendments to section 21 were made by the Local Government Act 1972 (c. 70), Schedule 23, paragraph 2, and Schedule 30; the National Health Service Reorganisation Act 1973 (c. 32), Schedule 5; the Housing (Homeless Persons) Act 1977 (c. 48), Schedule; the Children Act 1989 (c. 41), Schedule 13, paragraph 11(1); the National Health Service and Community Care Act 1990 (c. 19), section 42(1), Schedule 9, paragraph 5(1) to (3), and Schedule 10; the Immigration and Asylum Act 1999 (c. 33), section 116; the Health and Social Care Act 2001 (c. 15), section 53; the Nationality, Immigration and Asylum Act 2002 (c. 41), section 45(5), and the National Health Service (Consequential Provisions) Act 2006 (c. 43), Schedule 1, paragraphs 5 and 6.

M26 1989 c. 41; section 22(1) was amended by the Local Government Act 2000 (c. 22), Schedule 5, paragraph 19; the Children (Leaving Care) Act 2000 (c. 35), section 2(1) and (2), and the Adoption and Children Act 2002 (c. 38), section 116(2).

Victims of human trafficking E+W

16.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor, where a competent authority—

(a) has identified the overseas visitor as a victim of human trafficking; or

(b) considers that there are reasonable grounds to believe that the overseas visitor is a victim of human trafficking, and the recovery and reflection period in relation to that person under Article 13 of the Trafficking Convention has not yet expired.

(2) In this regulation—

“competent authority” means a designated competent authority of the United Kingdom for the purposes of the Trafficking Convention M27 ;

“Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (agreed at Warsaw on 16th May 2005) M28 ;

“victim of human trafficking” means a victim within the meaning of Article 4 of the Trafficking Convention.

Marginal Citations

M27 The designated competent authorities for the United Kingdom for the purposes of the Trafficking Convention are the Home Office (postal address: UKVI, Waterside Court, 471 Kirkstall Road, Leeds LS4 2QB) and the United Kingdom Human Trafficking Centre (postal address: UKHTC, PO Box 8000, London SE11 5EN).

M28 Cm 8414. The Convention entered into force in respect of the United Kingdom on 1st April 2009.

Exceptional humanitarian reasons E+W

17.—(1) Where an overseas visitor who has been granted leave to enter the United Kingdom outside the immigration rules—

(a) applies (or someone applies on the overseas visitor's behalf) for exemption from charges in respect of relevant services for a course of treatment; and

(b) the Secretary of State determines that exceptional humanitarian reasons justify it,

no charge may be made or recovered in respect of relevant services provided to that overseas visitor for that course of treatment.

(2) A determination under paragraph (1)(b) may only be made by the Secretary of State if the Secretary of State is satisfied, in the case of that overseas visitor, that—

(a) the treatment specified is not available in that person's home country;

(b) the necessary arrangements have been made for temporary accommodation for that person, any authorised companion and authorised child for the duration of the course of treatment; and

(c) 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.

Overseas visitors detained in hospital or subject to court ordered treatment E+W

18.  No charge may be made or recovered in respect of relevant services provided to an overseas visitor—

(a) who is liable to be detained in a hospital, received into guardianship or subject to a community treatment order under the Mental Health Act 1983 M29 ;

(b) who is detained in a hospital in circumstances which amount to deprivation of the overseas visitor's liberty and that deprivation of liberty is authorised under any of the following provisions of the Mental Capacity Act 2005 M30 —

(i) section 4A (restriction on deprivation of liberty) M31 ;

(ii) section 4B (deprivation of liberty necessary for life-sustaining treatment etc) M32 ;

(iii) section 16 (powers to make decisions and appoint deputies: general); or

(iv) Schedule A1 (hospital and care home residents: deprivation of liberty) M33 ;

(c) whose detention in hospital is authorised by any other enactment authorising detention in a hospital; or

(d) who is required to submit to a specified form of treatment that is imposed by, or included in, an order of a court and paragraph (a), (b) or (c) does not apply.

Marginal Citations

M29 1983 c. 20. Section 17A(3) of the Mental Health Act 1983, which was inserted by section 32(1) and (2) of the Mental Health Act 2007 (c. 12) (“the 2007 Act”), defines “community treatment order” for the purposes of that Act.

M30 2005 c. 9.

M31 Section 4A was inserted by the 2007 Act, section 50(1) and (2).

M32 Section 4B was inserted by the 2007 Act, section 50(1) and (2).

M33 Schedule A1 was inserted by the 2007 Act, Schedule 7.

Prisoners or detainees E+W

19.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor—

(a) who is detained in prison or in a place in which a person may be detained that is provided by the Secretary of State under section 43(1) (remand centres and young offender institutions) of the Prison Act 1952 M34 ; or

(b) who is detained under any of the following provisions—

(i) Schedule 2 (administrative provisions as to control on entry etc) M35 or Schedule 3 (supplementary provisions as to deportation) M36 to the 1971 Act;

(ii) section 62 (detention by Secretary of State) of the Nationality, Immigration and Asylum Act 2002 M37 ;

(iii) section 40(7)(c) (searches: contracting out) of the Immigration, Asylum and Nationality Act 2006 M38 ; or

(iv) section 2 (detention) or 36 (detention) of the UK Borders Act 2007 M39 .

(2) In this regulation, “prison” has the meaning given in section 53(1) of the Prison Act 1952 M40 .

Marginal Citations

M34 1952 c. 52; section 43(1) was amended by the Criminal Justice Act 1988 (c. 33), Schedule 8, paragraph 1, Schedule 15, paragraph 11, Schedules 16 and 18; the Criminal Justice and Public Order Act 1994 (c. 33), section 5(2), 18(3) and Schedule 11; the Crime and Disorder Act 1998 (c. 37), Schedule 8, paragraph 6; the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6), Schedule 9, paragraph 5(1) and (2); the Criminal Justice and Immigration Act 2008 (c. 4), Schedule 26, paragraph 3, and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), Schedule 12, paragraph 4.

M35 1971 c. 77; Schedule 2 was amended by the Criminal Justice Act 1972 (c. 71), Schedule 6, Part II; the British Nationality Act 1981 (c. 61), Schedule 4, paragraphs 2 and 3(1); the Immigration Act 1988 (c. 14), Schedule, paragraphs 6 to 9 and 10(1); the Asylum and Immigration Act 1996 (c. 49), Schedule 2, paragraphs 5 to 12 and Schedule 4; the Access to Justice Act 1999 (c. 22), Schedule 13, paragraph 70; the Immigration and Asylum Act 1999 (c. 33), section 18, 19, 132(2), 134(2), 135(2), 136(2), 139(2), 140, Schedule 14, paragraphs 43, 56 to 65, 67 and Schedule 16; the Nationality, Immigration and Asylum Act 2002 (c. 41), sections 63, 64, 73(1) and (5), 119 and Schedule 7, paragraphs 2, 4 and 6; the Courts Act 2003 (c. 39), Schedule 8, paragraph 149; the Health Protection Agency Act 2004 (c. 17), Schedule 3, paragraph 3; the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), section 16, 18 and Schedules 2 and 4, paragraph 1; the Immigration, Asylum and Nationality Act 2006 (c. 13), sections 27, 31 and 42 and Schedule 3; the Immigration Act 2014 (c. 22), section 5, 7, 9, 13, Schedule 1, paragraphs 1, 2(1) and 3, Schedule 2, paragraph 1, Schedule 8, Schedule 9, paragraphs 1, 20, 23 and 72; S.I. 1990/2227, 1993/1813, 2010/21 and 2014/1704.

M36 Schedule 3 was amended by the Criminal Justice Act 1982 (c. 48), Schedule 10; the Immigration Act 1988 (c. 14), Schedule, paragraph 10(2); the Asylum and Immigration Act 1996 (c. 49), Schedule 2, paragraph 13; the Immigration and Asylum Act 1999 (c. 33), section 54 and Schedule 14, paragraphs 43 and 68; the Nationality, Immigration and Asylum Act 2002 (c. 41), Schedule 7, paragraph 7 and 8; the Courts Act 2003 (c. 39), Schedule 8, paragraph 150 and Schedule 10; the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), section 34; the Immigration, Asylum and Nationality Act 2006 (c. 13), section 53, and the Immigration Act 2014 (c. 22), Schedule 1, paragraph 2(2) and Schedule 9, paragraphs 9, 20 and 24.

M37 2002 c. 41; section 62 was amended by the Prevention of Terrorism Act 2005 (c. 2), section 16(2)(c) and the Immigration Act 2014 (c. 22), Schedule 9, paragraphs 3(1), (2) and 13.

M38 2006 c. 13.

M39 2007 c. 30; section 2 was amended by the Borders, Citizenship and Immigration Act 2009 (c. 11), section 52(1).

M40 1952 c. 52. There are amendments to section 53(1) but none are relevant.

Members of the regular and reserve forces, Crown servants and others E+W

20.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is—

(a) a member of the regular or reserve forces within the meaning of the Armed Forces Act 2006 M41 ;

(b) a qualifying employee who is visiting the United Kingdom in the course of the qualifying employment; or

(c) where paragraph (b) does not apply, a qualifying employee who—

(i) was ordinarily resident in the United Kingdom immediately prior to becoming a qualifying employee; or

(ii) where the qualifying employee has been employed in more than one position of qualifying employment, the qualifying employee was ordinarily resident in the United Kingdom immediately prior to taking up one of the positions of qualifying employment.

(2) An overseas visitor will be a “qualifying employee” if the overseas visitor was recruited in the United Kingdom and is—

(a) a Crown servant (other than a person falling within paragraph (1)(a)) employed by, or in the service of, the Government of the United Kingdom;

(b) an employee of the British Council or the Commonwealth War Graves Commission; or

(c) working in employment, whether or not the overseas visitor derives a salary or wage from that employment, that is financed in part by the Government of the United Kingdom in accordance with arrangements with the Government of some other country or territory or a public body in such other country or territory.

(3) In this regulation “qualifying employment” means any period of employment during which the overseas visitor was a qualifying employee.

Marginal Citations

M41 2006 c. 52; “the regular forces” and “the reserve forces” are defined in section 374 of the Armed Forces Act 2006 as amended by the Defence Reform Act 2014 (2014 c. 20), section 44(3)(a), (b) and (4).

NATO forces E+W

21.—(1) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a person to whom Article IX(5) of the Agreement regarding the Status of Forces of Parties to the North Atlantic Treaty (agreed in London on 19th June 1951) M42 applies.

(2) This regulation applies where the services in question cannot readily be provided by the medical services of the armed forces of—

(a) the overseas visitor's own country; or

(b) the United Kingdom.

Marginal Citations

M42 Cmd. 9363.

War pensioners and armed forces compensation scheme payment recipients E+W

22.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is in receipt of—

(a) any pension or other benefit under a Personal Injuries Scheme or Service Pensions Instrument, which Scheme and Instrument are defined in regulation 2(1) (interpretation) of the Social Security (Overlapping Benefits) Regulations 1979 M43 ; or

(b) a payment made under article 15(1)(c) (description of benefits – injury) or article 29(1) (description of benefits – death) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 M44 .

Marginal Citations

M43 S.I. 1979/597, amended by S.I. 1980/1927; there are other amending instruments but none is relevant.

M44 S.I. 2011/517, amended by S.I. 2011/2552; there are other amending instruments but none is relevant.

Employees on ships E+W

23.  No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is employed or engaged or working in any capacity on board a ship and whose normal place of work is on board a ship, where that ship is registered in the United Kingdom.

Treatment the need for which arose during the visit E+W

24.  No charge may be made or recovered in respect of any relevant services, consisting of treatment the need for which arose during the visit, provided to an overseas visitor who is any of the following—

(a) a national of a state which is a contracting party to the European Convention on Social and Medical Assistance (agreed in Paris on 11th December 1953) M45 or the European Social Charter (agreed in Turin on 18th October 1961) M46 and is—

(i) lawfully present in the United Kingdom; and

(ii) without sufficient resources to pay the charge;

(b) an authorised child or an authorised companion.

Marginal Citations

M45 Cmd. 9512. The Convention entered into force in respect of the United Kingdom on 7th September 1954.

M46 Cmd. 2643. The Charter entered into force in respect of the United Kingdom on 11th July 1962. Article 13 provides the right to social and medical assistance.

Family members of overseas visitors E+W

25.—(1) For the purposes of this regulation, unless otherwise provided, “ member of the family” means—

(a) the spouse or civil partner of an overseas visitor; or

(b) a child in respect of whom an overseas visitor has parental responsibility.

(2) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a member of the family of another overseas visitor (“the principal overseas visitor”) and is lawfully present if the principal overseas visitor is exempt from charges under any of the following regulations—

(a) regulation 16 (victims of human trafficking);

(b) regulation 20 (members of the regular and reserve forces, Crown servants and others);

(c) regulation 21 (NATO forces).

(3) No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a child who—

(a) is born in the United Kingdom to a parent who is exempt from charges by virtue of—

(i) regulation 10 (immigration health charge); or

(ii) regulation 11 (overseas visitors who have made applications for entry clearance or leave to remain prior to the commencement of the immigration health charge);

(b) is aged 3 months or less; and

(c) has not left the United Kingdom since birth.

(4) Subject to paragraphs (5) to (7) of this regulation, no charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a member of the family of a principal overseas visitor if—

(a) the overseas visitor is lawfully present in the United Kingdom;

(b) the overseas visitor is visiting the United Kingdom with the principal overseas visitor; and

(c) the principal overseas visitor is exempt from charges under—

(i) regulation 12 (EU rights);

(ii) regulation 13 (overseas visitors who are treated as if entitled under the social security coordination regulation); or

(iii) regulation 22 (war pensioners and armed forces compensation scheme payment recipients).

(5) Where the overseas visitor is a member of the family of a principal overseas visitor who is exempt from charges under—

(a) regulation 12 (EU rights); or

(b) regulation 13 (overseas visitors who are treated as if entitled under the social security coordination regulation),

the exemption in paragraph (4) only applies if both the conditions in paragraphs (6) and (7) are satisfied.

(6) The first condition is that—

(a) the overseas visitor—

(i) where paragraph (5)(a) applies, does not have an enforceable EU right of the kind described in regulation 12; or

(ii) where paragraph (5)(b) applies, would not have an enforceable EU right of the kind described in regulation 13 if the United Kingdom had opted in as described in Article 27(2) of Regulation 883/2004 and was listed in Annex IV to that Regulation; and

(b) the reason that the overseas visitor does not, or would not, have an enforceable EU right of the kind described in those regulations is because the overseas visitor is not recognised as a member of the family (within the meaning in Article 1(i) of Regulation (EC) 883/2004 or any other relevant regulations or agreements which provide for an enforceable EU right of the kind described in regulation 12 for family members) of the principal overseas visitor.

(7) The second condition is that the relevant services provided to the overseas visitor are services that the overseas visitor would be entitled to receive without charge by virtue of an enforceable EU right under regulation 12 or 13 if the overseas visitor had such a right.

(8) None of the provisions of this regulation affect any entitlement which any member of the family of an overseas visitor may have to an exemption from charges for relevant services by virtue of an enforceable EU right or any other exemption which they may be entitled to in their own right.

PART 5 E+W Consequential amendments, savings and revocations

Consequential amendments E+W

26.  The consequential amendments set out in Schedule 3 have effect.

Savings and revocations E+W

27.  The instruments set out in column (1) of the table in Schedule 4 are saved in respect of charges made, or to be made, and recovered for courses of treatment (whether continuing or not) commenced before the 6th April 2015, but are otherwise revoked to the extent set out in column (3) of that table.

Signed by authority of the Secretary of State for Health.

Earl Howe

Parliamentary Under-Secretary of State,

Department of Health

5th February 2015