Introduction

 Entitlement to free UK NHS healthcare underpins the lives lead by EU Citizens (and their family members) in the UK. Unless EU Citizens can access NHS healthcare free when needed, the peace of mind and security of knowing they will be cared for where they fall victim to illness or injury is undermined. What is the position for EU Citizens who are in the UK before the end of the Brexit transition period (31 December 2020)?  Any person worried that they might be liable to be charged for NHS hospital care, or equivalent, should seek legal advice on their position. However, the framework of rules is as set out below.

The Hostile Environment in Healthcare and its impact on EU Citizens (‘Ordinary Residence’)

 The Conservative-Liberal Democrat Coalition government (2010-2015) made the legislation that underpins the hostile environment for migrants in the field of healthcare. The Immigration Act 2014, section 39, prevents any person from being free of applicable NHS healthcare charges (by being treated as ‘ordinarily resident’ in Great Britain or Northern Ireland), in two key immigration situations:

• Where a person requires leave to enter or remain in the UK but does not have it, and
• Where a person has leave to enter or remain in the UK but only for a limited period or time

EU Citizens who have an EU right to reside (e.g. as a Worker, Student, Permanent Resident, or family member of such a person, etc.) are lawfully resident and are not subject to immigration control; thus insofar as they are exempt from the immigration restrictions and satisfy all other criteria (see below), they are ‘ordinarily resident’ and thus free of applicable NHS charges. Down to the end of the Brexit transition period (31 December 2020) that remains the case. People with indefinite leave to enter or remain may also be ordinarily resident and thus free from NHS charges.

From 2021 onwards,  those people relieved from applicable NHS charges include those who enjoy rights of residence under the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020 and those who have been granted limited or indefinite leave (or who may be granted such leave) under the Home Office’s EU Settled Status scheme (EUSS) in Appendix EU of the Immigration Rules on  any basis.  Persons with EUSS indefinite leave (Settled Status) stand to be ordinarily resident and not liable to be charged, while those persons with EUSS limited leave (Pre-settled Status) and those who may be granted any form of leave under the EUSS will be overseas visitors but exempt from charges.

Prior to the end of the Brexit transition period (31 December 2020), those who do not enjoy EU rights of residence (e.g. as a Worker, Student, Permanent Resident, family member of such a person, etc.) and who have limited leave to enter or remain or no leave to enter or remain, are not ‘ordinarily’ resident’ and therefore not free liability to charges for NHS healthcare as they are overseas visitors. What exceptions are there to this general rule? The exceptions to charging are considered in more detail below but persons with EUSS indefinite leave (Settled Status) stand to be ordinarily resident and not liable to be charged, while those persons with EUSS limited leave (Pre-settled Status) will be overseas visitors but exempt from charges. Those who may be able to apply for leave under the EUSS but who do not possess it are not exempt from NHS charges in this period by virtue of being able to make an application. In this respect the position prior to 2021 is different to that from 2021 onwards (see above).

In the period prior to the end of the Brexit transition period (31 December 2020), where an EU Citizen is yet to secure Settled Status or Pre-Settled Status,  it is important not to lose sight of the role of EU rights of residence: a German banker made redundant may retain EU Worker status in certain circumstances, a self-employed Italian journalist may retain EU Self-employed status during periods of pregnancy and maternity, a situation which allows for continuity when she returns to active work. Such EU rights to reside may render people ordinarily resident and thus not liable to be charged for NHS healthcare.

Ordinary Residence:  Beyond the Hostile Environment

‘Ordinary residence’ is not simply a question of immigration status. It denotes living lawfully in the UK voluntarily and for settled purposes as part of the regular order of life for the time being, whether of short or long duration, see Shah v Barnet London Borough Council [1983] 1 All ER 226.  As regards ‘settled purpose’, there must be an identifiable purpose for residence in the UK, there can be one purpose or several, and it may be for a limited period. The purpose for living in the UK must have a sufficient degree of continuity to be properly described as ‘settled’. Further, ‘ordinary residence’ can be of long or short duration. A person can be ordinarily resident in more than one country at once.

Charging EU Citizens for NHS Healthcare in England

In England (different rules apply in Wales, Scotland, and Northern Ireland), the NHS charging regime is made under the National Health Service Act 2006, s 175 and the National Health Service (Charges to Overseas Visitors) Regulations 2015 (‘the Charging Regulations’). The charging regime applies to ‘overseas visitors’; persons who are ‘ordinarily resident’ in the UK are not ‘overseas visitors’ and thus not liable to be charged for any healthcare. That is why it is important for an EU Citizen to establish that they are ‘ordinarily resident’ when they can. However, where an EU Citizen is not ordinarily resident but merely an overseas visitor, how does the NHS charging regime work and how may EU Citizens and their family members be made exempt from charges?

Under the Charging Regulations, charges must be made and recovered for relevant services provided to overseas visitors unless the regulations provide for no charge to be made after reasonable enquiries have been made (including as to the person’s health) as regards the applicability of the charging regime.

Payment must be secured prior to the provision of services unless doing so would prevent or delay the provision of an immediately necessary service or an urgent service. Immediately necessary services means (i) antenatal services provided in respect of a person who is pregnant; (ii) intrapartum and postnatal services provided in respect of a person who is pregnant, a person who has recently given birth, or a baby; and (iii) any other relevant service that the treating clinician determines the recipient needs promptly to save the recipient’s life, to prevent a condition becoming immediately life-threatening, or to prevent permanent serious damage to the recipient from occurring. Urgent service means a service that the treating clinician determines is not an immediately necessary service but which should not wait until the recipient can be reasonably expected to leave the UK.

Many services provided to overseas visitors are exempt from charges, including:

• primary medical services (including GPs)
• Accident and emergency services, but not including any services provided after the overseas visitor has been accepted as an in-patient at a hospital, or at an outpatient appointment
• Services provided as part of a telephone advice line
• Family planning services
• Services provided for the diagnosis and treatment of sexually transmitted infections
• Services provided for the treatment of a condition caused by torture, female genital mutilation, domestic violence, or sexual violence, provided that the overseas visitor has not travelled to the UK for the purpose of seeking that treatment
• Palliative care services
• Services provided for the diagnosis and treatment of diseases on the list for which no charge is to be made, including Wuhan novel coronavirus (2019-nCoV)

In addition, certain classes of overseas visitor are exempt from charging, including:

• Before and after the end of the Brexit transition period (31 December 2020), those people who have paid the Immigration Health Surcharge or who are exempt from such charges (people seeking entry clearance or leave, including Pre-settled Status/limited leave, under the EU Settlement Scheme (EUSS) are exempt from paying the Immigration Health Surcharge and thus are exempt from being charged)
• Prior to the end of the Brexit transition period (31 December 2020), overseas visitors with EU rights under (i) regulations made under Article 48 of the Treaty on the Functioning of the European Union (TFEU) (including UK pensioners resident in the EEA/Switzerland) (NB this class includes a number of exemptions that arise from the practical effect of the Co-ordination of Social Security Regulation 883/2004, see below), (ii) an agreement entered into between the EU and any other country, or (iii) any other enforceable EU right
• After the end for the Brexit transition period (31 December 2020), overseas visitors who are ordinarily resident in an EEA state or Switzerland, who were ordinarily resident there immediately before the end for the transition period, and either: (i) immediately before thenheld a valid UK reciprocal healthcare document (S1, A1, EHIC, or equivalent); or  (ii) at the time that the treatment which constitutes the relevant services was provided, would have been eligible to be issued with a UK reciprocal healthcare document if the end of the transition period had not occurred
• After the end for the Brexit transition period (31 December 2020), where services are provided under an existing reciprocal agreement (Iceland, Lichtenstein, Norway, Faroe Islands, Switzerland)
• After the end for the Brexit transition period (31 December 2020), where services are to be provided under a reciprocal agreement made between the UK and an EEA state or Switzerland, coming into effect after the end of the transition period
• After the end for the Brexit transition period (31 December 2020), British citizens or Irish citizens ordinarily resident in the Republic of Ireland
• After the end for the Brexit transition period (31 December 2020), as regards Frontier Workers, relevant services, consisting of treatment the need for which arose during the visit. NB a frontier worker means a person who before the end of the transition period is pursuing in the UK an activity as an employed or self-employed person which the person began to pursue there before the end of the transition period; who resides in an EEA state or Switzerland; and who returns to their residence in that EEA state or Switzerland at least once a week.
• As regards, nationals of a state party to the European Convention on Social and Medical Assistance (ECSMA) (inc. some EEA states) (1953) or the European Social Charter (1961) (inc. some EEA states) who are  lawfully present in the UK and without sufficient resources to pay the charge; or an authorised child or an authorised companion of such a person; treatment the need for which arose during the visit
• After the end for the Brexit transition period (31 December 2020), transitional protection for (i) those ordinarily resident in an EEA state or Switzerland and receiving pre-authorised treatment in the UK; (ii) visitors (inc. those receiving UK education or training) with an EHIC Card (or equivalent) whose visit began before the end of the transition period and who receive treatment the need for which arose during the visit
• After the end for the Brexit transition period (31 December 2020), people (EU Citizens and family members) who are overseas visitors by virtue of section 39 of the Immigration Act 2014, i.e. they are not ordinarily resident as they lack permanent residence (see sectionabove on the hostile environment), and who may be granted leave to remain in the UK under the EU Settled Status Scheme under  Appendix EU to the Immigration Rules; this applies whether or not the person has applied for or has been granted leave to remain under Appendix EU
• Certain family members of overseas visitors.

EU Co-ordination of Social Security Regulation Healthcare Rights prior to the end of the Brexit Transition Period (31 December 2020)

Under the operation of the EU Co-ordination of Social Security Regulation 883/2004, certain persons resident in the UK are exempt from NHS healthcare charges (usually because the bill for treatment may be sent to the home state for payment). The provisions are extremely complex but in a nutshell they include:

• Visitors to the UK who are residents ‘insured’ under any public healthcare system of an EEA country or Switzerland and covered by the EU Co-ordination of Social Security Regulation 883/2004 when they are visiting the UK, inc. those with an EHIC Card or Provisional Replacement Certificate
• EEA/Swiss resident Workers posted to the UK for less than 2 years
• UK resident Workers posted to the EEA/Switzerland for less than 2 years but visiting the UK
• Family members of the above two classes
• EEA/Swiss resident Students studying in the UK
• People coming to the UK from the EEA/Switzerland for pre-planned treatment
• UK State Pensioners resident in the EEA or Switzerland

Concluding observations

Prior to the end of the Brexit transition period (31 December 2020), those EU Citizens and their family members who are liable to be charged for NHS healthcare are those who lack any EU rights to reside, indefinite leave on any basis (inc. under the EUSS), or limited leave under the EUSS or on some other exempting basis. Such persons may be hard to identify. After the end of the transition period, those who may fall within the scope of the EUSS are included in those persons exempt from being charged. But there will be those who have been refused Home Office leave under the EUSS and who lack any other qualifying immigration status that exempts them from NHS charges. It is important to grasp that such persons may still fall within the scope of the protection of the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020 as, regardless of the immigration status, they remain publicly insured via their home states for risks as regards healthcare (and indeed pensions  and social security) and thus cannot be charged for NHS healthcare. In such complex cases, advice will be needed.