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Should my practice register asylum seekers?

Gavin Jones of Blake Lapthorn summarises the legal principles behind providing free healthcare on the NHS to non-UK residents, and the checks to perform when registering immigrants.

The NHS is provided primarily for the benefit of people resident in the United Kingdom.  Nationality and payment of UK tax and NI contributions are not taken into account when establishing entitlement. In the main, secondary or elected care may attract a charge where a patient is not ordinarily resident in the UK or otherwise exempt. Given the current economic climate, the Government has been reviewing costs incurred by non residents and how these can possibly be recovered.  

Review and consultation exercises were undertaken in 2009/2010 and in March 2011 the Minister of State for Immigration (Damian Green) announced the Government's response and proposals to deter overseas visitors from misusing the NHS.  The consultation sample of hospitals reported that the estimated cost to NHS of overseas visitors not paying for treatment was £5m per year.  It was stated that these costs would cover the salaries of approximately 150 nurses.

The resulting changes to the Immigration Rules therefore target non UK residents who have outstanding NHS debt of £1,000 or more.  It is anticipated that the technical costs of sharing data between the NHS and UK Border Agency (UKBA) are relatively insignificant as existing systems utilised by both agencies can be integrated electronically.  The threshold was set at the £1,000 level in order for the albeit relatively low costs of recovery action (which may lead to forced removal from the UK), are not disproportionate to the debt to be recovered.

In order for the targeted recovery of costs to be effective, there are two strands of action required.  Firstly, the costs need to be linked to an individual debtor.  Secondly, that individual debtor needs to be invited to pay the charges.  It is anticipated that a targeted debtor will be intercepted by UKBA officials when trying to enter the UK.  The debtor will then be referred to the NHS, which currently operates a 24-hour telephone line in order to take payment electronically.

It is important to note that the Immigration Rules change does not purport to amend current NHS regulations that govern who is charged for accessing the NHS.  The change to the Immigration Rules is aimed merely to recover charges from those who are not entitled to free access.  The UKBA will not play any part in deciding whether medical treatment is provided free or charged.  The Department of Health provides guidance in this regard.

General practitioners have (and will retain) discretion to register any patient for free primary medical care, regardless of their residential or immigration status.  Immediately necessary or other urgent treatment (including maternity care) must not be withheld or delayed because of questions of payment.  

In the case of non urgent treatment, full payment would normally be required before treatment commences.  Registration with a GP does not however give an automatic right to free hospital treatment.

There are regulations currently in place that make provision for certain categories of patients to be exempt from charges.  These include non-UK nationals with residence in the UK (e.g. marriage to UK resident); those working or studying here (for longer than six months) etc.  There are also limited exemptions for EEA nationals.

Where it is appropriate that charges for treatment are due, instances of non payment should be gathered centrally by the NHS.  When the outstanding amount exceeds £1,000, the data will be processed by the relevant NHS Counter Fraud Services.  They will then share this data with the UK Border Agency.  It is important to note that no clinical data or other personal medical data will be shared.

The overriding principle of access to the NHS and registration of patients has not changed.  What is required however is a means to recover costs incurred by those who should pay.  

On that basis, GPs (and practice managers) should look to ensure they take clear copies of passports or other travel documentation when registering a patient.  If there is additional evidence confirming identification or address (credit card details, bank statement, drivers licence etc) copies of those are also extremely helpful.  Alongside the details page from the passport, it will also be helpful to take a copy of the most recent entry stamp issued at the UK border.

The UKBA has been at pains to emphasise that current policy regarding treatment of individuals should not be applied any differently.  It is seeking merely to secure data to recover unpaid costs from those that should pay.

Gavin Jones is Head of Blake Lapthorn's Immigration team

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