Date Legislation considered: 10 February 2023
Date Legislation in Force: 18 February 2023
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment
What does the legislation do?
The Regulations amend the National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the Principal Regulations”).
The Principal Regulations require relevant bodies in England (mainly the NHS) to make and recover charges in respect of relevant healthcare services that are provided to overseas visitors not ordinarily resident in the United Kingdom , unless the overseas visitor or the service they receive falls within a charging exemption.
The Explanatory Memorandum provides that the purpose of the Regulations is to “introduce an exemption from charges for National Health Service (“NHS”) funded secondary care for the application period of those individuals who have made a late application for European Union Settled Status (“EUSS”) but have not been granted leave to remain or enter. Any charges for such services which have already been made should either not be collected or, if already paid, should be refunded.”
In December 2022, the IMA wrote to officials at the Department of Health and Social Care highlighting provision within the Principal Regulations and within Guidance that required relevant bodies in England to charge unsuccessful late applicants to the EUSS for treatment received during the period in which their application was being determined.
The IMA considers that this is incompatible with Article 18(3) of the Withdrawal Agreement and Article 17(3) of the EEA EFTA Separation Agreement which provide (subject to provisions relating to fraud) for rights under Part 2 of the Agreements to be deemed to apply during the period when an application to the EUSS is being determined.
The Regulations amend the Principal Regulations to remove the requirement to charge unsuccessful late applicants to the EUSS for relevant NHS treatment received during the period when their application was being determined.
They also require that where charges have been paid, they must be repaid by the relevant body. Where charges have been made but not paid, they must not be recovered.
The IMA is continuing to engage with officials at the Department of Health and Social Care in respect of this issue.
The IMA raises no issues of concern with the Regulations at this stage, however any citizens experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.