National Health Service (Charges to Overseas Visitors) Regulations 1989/ Guidance on implementing EU Exit amendments to the Overseas Visitors Charging Regulations

Summary of Information 

In July 2022 the IMA contacted the Welsh Government (WG) – who are responsible for policy on health and adult social care matters in Wales – to highlight two concerns it had been made aware of in relation to the National Health Service (Charges to Overseas Visitors) Regulations 1989 (as amended) (“the Regulations”) and Guidance on implementing EU Exit amendments to the Overseas Visitors Charging Regulations (“the Guidance”) concerning the charging of late applicants to the European Union Settlement Scheme (EUSS). 

The Regulations and Guidance tell health bodies in Wales who they must charge for some NHS Services. 

The first concern related to provision within the Regulations which required health bodies in Wales to charge late applicants to the EUSS (who were later unsuccessful in their application) for treatment received during the period in which their application was being determined. 

The second concern was that paragraph 9.16 of the Guidance incorrectly stated that joining family members who apply late to the EUSS (i.e. more than three months following their arrival in the UK), are chargeable until they are granted status under the EUSS. 

The IMA considered that both issues were a breach of Article 18(3) of the Withdrawal Agreement and Article 17(3) of the EEA EFTA Separation Agreement which provide for rights under the Agreements to apply to EU and EEA EFTA citizens and their family members during the period in which their application is being determined. 

As a result of the breach, there was also concern about the potential consequences for those EU and EEA EFTA citizens, who might have been incorrectly charged for NHS services. 

The IMA has worked with officials at the WG to agree how to resolve the issues identified. 

Summary of Actions and Evidence 

Upon receiving correspondence from the IMA, the WG took action and confirmed that they had completed the following actions: 

• Amended the Regulations to remove the requirement to charge unsuccessful late applicants to the EUSS for NHS treatment received during the period that their application was under consideration and require that any charges for such services which have already been made should either not be collected or, if already paid, should be refunded.   
• Amended paragraph 9.16 of the Guidance to remove the sentence which provided that joining family members who apply late to the EUSS (i.e. more than three months following their arrival in the UK) are chargeable until they are granted status under the EUSS. 
• Contacted all seven Local Health Boards in Wales and provided written confirmation to the IMA that no relevant citizen has been or will be charged as a result of the issues that the IMA identified. 

Summary of Decision 

On the basis of the actions that the WG have already undertaken, the IMA believes that the potential concerns identified have been resolved and the issue concluded as an Early Case Resolution. 

For the avoidance of doubt, this decision does not prevent the IMA from acting further should matters of concern in relation to the charging of EU and EEA EFTA citizens with rights under the Citizens’ Rights Agreements for NHS care. The IMA would encourage affected citizens to continue to report any issues, whether related to this issue or otherwise.