The National Health Service (Charges to Overseas Visitors) Regulations 2015 SI No 238 (the Charging Regulations) require NHS trusts in England to charge individuals with insecure immigration status for healthcare. Those subject to charging include refused asylum-seekers and undocumented migrants, groups that are without the right to work or to access mainstream benefits. Similar regulations apply in Scotland, Wales and Northern Ireland, though charges apply to a much narrower group of migrants, with refused asylum-seekers exempt in both Scotland and Wales. In the UK, most longer-term visa holders are required to pay a health surcharge to secure free NHS care for the duration of their visa.

The government’s stated rationale for the charging policy is to secure financial sustainability for the NHS by ensuring that overseas visitors ‘make a fair contribution’ towards the cost of those services.1Making a fair contribution. Government response to the consultation on the extension of charging overseas visitors and migrants using the NHS in England, Department of Health, February 2017, page 5. Jeremy Hunt MP, then health secretary, was explicit about the need for exceptions to this rule: ‘Of course there will be exceptions, so the most vulnerable groups of overseas visitors to whom we have international welfare obligations or some who are supported by the state will continue to access free NHS care.’2Ibid.

Given that NHS charging affects migrant women on low or no income, it is surprising that the NHS has undertaken no primary research on the impact of charging on women’s access to care. This is despite research by Maternity Action and others documenting the deterrent effect of charging policies and the vulnerabilities of many of the women from whom payment is sought.

Maternity Action’s research with 16 women affected by charging found that most had no entitlement to benefits or financial support during their pregnancy because of their irregular immigration status.3What price safe motherhood? Charging for NHS maternity care in England and its impact on migrant women, Maternity Action, September 2018. Many were in very precarious situations, often as a result of the breakdown of relationships with men on whom they relied for their immigration status. Their survival strategies were limited and included transactional sex, domestic work in exchange for shelter or working illegally. All these options commonly broke down during pregnancy, leaving these women destitute.

Charging policies, whether or not an invoice had been issued, were an effective deterrent to women attending for care. Women were also fearful of being reported to the Home Office as a result of seeking care.

In subsequent research, midwives reported that charging policies affected their ability to deliver effective care.4Duty of care? The impact on midwives of NHS charging for maternity care, Maternity Action, September 2019. Information needed to assess vulnerabilities and determine a personal care plan can also be information that determines chargeability, and women were often unwilling to disclose this. Midwives also observed the impact of charging on women’s mental health and on their attendance for care, increasing the likelihood of poor health outcomes for women and their babies.

The Charging Regulations contain a number of safeguards to protect vulnerable groups. There are exemptions for asylum-seekers, refugees and victims of trafficking (see regs 15–16). There are limited exemptions for survivors of violence, with no charges to be levied for treatment for a condition caused by torture, female genital mutilation (FGM), domestic abuse or sexual violence (reg 9). This is provided the overseas visitor did not travel to the UK for the purposes of seeking the treatment.

There is a substantial gap between the Charging Regulations and their implementation by NHS trusts.5Breach of trust: a review of the implementation of the NHS charging programme in maternity services in England, Maternity Action, September 2021. The assessment of immigration status, a key step in determining chargeability, is commonly undertaken by finance staff with only limited training in immigration law. NHS trusts request information about an individual’s immigration status from the Home Office. In more complex immigration cases, an immigration status check is insufficient to ascertain whether an individual is exempt from charging. Maternity Action’s immigration lawyers regularly advise women who have been wrongly charged for care as a result of basic errors at assessment. These include women with current asylum claims or where the competent authority has decided there are reasonable grounds to believe they are a victim of trafficking; in both cases, the woman’s status is readily determined by a review of her documentation.

Implementation of the exemptions for survivors of violence is particularly poor. While the exemptions appear to protect the most vulnerable groups, NHS trusts do not have the systems in place to proactively identify victims of such violence and do not commonly notify patients that exemptions exist. The workability of these exemptions depends on survivors of violence knowing about the process, as well as feeling safe enough to disclose the violence to hospital staff. Some trust staff have rejected sound evidence of domestic violence, in one case deciding that an incident resulting in hospitalisation was not domestic violence as it was ‘a one-off event’.

Trusts are required to take steps to recoup debts and debt collection agencies are commonly used. While some trusts refrain from pursuing debts during pregnancy, others take a more aggressive approach. In one case, a destitute pregnant woman with two children was pursued for a £9,000 debt and this continued despite representations from Maternity Action lawyers. The stress contributed to a decline in her mental health and affected her ability to care for her children.

A particularly harsh element of the charging regime is the requirement for trusts to report outstanding debts of £500 or more to the Home Office, except where a repayment plan is in place. Even debts that have been written off are subject to this requirement. This has long-term impacts on women’s abilities to regularise their status.

In March 2022, Immigration Rules Appendix FM was amended to add additional barriers to settlement where there are outstanding NHS debts. S-ILR.4.1 states that the applicant will normally be refused indefinite leave to remain on grounds of suitability if ‘[o]ne or more relevant NHS bodies has notified the secretary of state that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500’ (S-ILR.4.5).

This change assumes that NHS trusts have a functioning system for charging overseas visitors. Maternity Action recently represented a woman who was informed by the Home Office that before she applies for settlement, she must repay the debts owed to three NHS trusts. This was the first time she had been notified of any outstanding NHS invoices. As a woman on a low income with responsibility for five children, it is extremely unlikely that she will be able to repay over £15,000 in NHS debt within the 2½ years she has remaining before being eligible to apply for indefinite leave to remain. The 10-year route to settlement is therefore more likely to become 15 or 20 years.

It is likely that an increasing number of women will discover outstanding debts when applying for settlement. Women may be unaware of charges levied because of changing address or because trusts did not raise invoices at the time the charges were incurred. In the case above, the woman’s invoices had been raised over five years after she received the care and sent to a former address. She was also invoiced for care for one of her children with no charge raised against the father, who was present during the treatment.