NHS care and non-UK nationals

There is no general right to come to the United Kingdom in order to obtain free treatment from the UK's National Health Service (NHS). Nationals of the member states of the European Economic Area (EEA), or their family members, and refugees and stateless persons living within the EEA, have the right to NHS treatment without charge where the need arises during their stay. EEA nationals who wish to enter the UK for treatment (or who are referred to the UK for treatment) should obtain prior authorisation from their national social security institution, which in principle bears the cost, and obtain a European Health Insurance Card before travelling.

The European Health Insurance Card covers people from the EEA and also Switzerland - the full list of countries covered is: Austria, Belgium, Cyprus (but not Northern Cyprus), Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

Most NHS treatment is not automatically free of charge to people from other countries. Access to the NHS depends on a combination of one or more of: immigration status; length of residence; nature of the treatment required; and whether the need for it arose during the visit.

However, certain NHS treatment is free to everyone. This includes testing and counselling for HIV or sexually transmitted infections at a genitourinary clinic (but not any subsequent treatment for HIV), family planning services, treatment for mental health problems, hospital accident and emergency treatment (but not inpatient care) and treatment for notifiable diseases and other conditions to which public health laws apply (including tuberculosis, but not including HIV).

In October 2012, the rules will change so that HIV treatment is one of the services which is free to everyone. Until then, charges may be made.

In addition, certain categories of people are exempt from any NHS charges. The main categories are: those who have been lawfully living in the UK for the previous twelve months; anyone in legal employment in the UK; anyone taking up permanent residence in the UK (although those applying for permanent residence will be charged until this is granted); refugees and asylum seekers; prisoners and immigration detainees; full-time students; and those whose home countries have a reciprocal health agreement with the UK.

Asylum seekers have a right to free HIV treatment for as long as their claim is being considered and this period includes any process of appeals. Furthermore, if an HIV-positive asylum seeker is being seen for HIV treatment and care by the NHS then this treatment can continue free of charge even after an asylum claim is finally denied.

A 2008 legal ruling means that refused asylum seekers are also entitled to free NHS treatment and care for as long as they remain in the UK. Undocumented migrants and those who have over-stayed a visa are not entitled to free NHS care.

There is considerable inconsistency in the application of these regulations across the country and much confusion both among NHS staff and the public on who has a right to free treatment. There have been several documented examples of people being wrongly denied free treatment and anyone living with HIV who is having difficulty accessing free HIV treatment should seek advice and support from local or national HIV support organisations. It should also be noted that the charging regulations described above only apply in England.

There is also confusion on the entitlement to free NHS primary care (for example, in GP practices). Asylum seekers are entitled to register with a GP and access free primary care services like anyone else, as long as they live in the practice area and the practice list is open for new registrations. A practice cannot legally refuse to register a patient who happens to be an asylum seeker if their list is open to other patients. Similarly, refused asylum seekers are also entitled to free treatment and care from a GP.

Other categories of people are exempt from charges for treatment, if the need for it arose during a visit to the UK. This provision is intended to exclude travel to the UK specifically for treatment on the NHS of a pre-existing condition.

It's worth noting that a person will be liable for NHS charges for HIV care if:

• They entered the UK without proper papers or permission.
• They are in the UK on a visitor's visa.
• They have overstayed a visa of any kind.
• They have a British passport but do not normally reside in the UK.

However, nobody should be refused NHS treatment if they have a life-threatening condition. This means that people with HIV should be able to access NHS care, even if they are unable to pay for it. The decision to offer treatment is up to the doctor. The hospital providing the treatment is entitled to try and recover the costs of this treatment and many have an Overseas Payment Officer who assesses a person's ability to pay.

It is vitally important that the hospital's administration knows what your real financial situation is. Hospitals can write off the costs of treatment if it is clear that a person cannot pay, or may accept a token payment of just a few pounds a month.

Immigration is a complex and specialist topic, and the laws can change frequently. It is essential that anyone seeking information on this subject go to appropriate advice agencies. The following organisations can provide guidance:

• Refugee and Migrant Justice (Formerly the Refugee Legal Centre) Operate an advice service on Mondays, Wednesdays and Fridays - clients are given an appointment for the same day starting at 9.30am. Also have regional offices across England. 

• The official Home Office website of the UK Border Agency includes downloadable versions of application forms and information on visiting the UK, studying and working in the UK and UK residency.

• The UK Lesbian & Gay Immigration Group, PO Box 51524, London, SE1 7ZW.  Provides information and advice on immigration rights for same sex couples and support for lesbian and gay asylum seekers.  See website for more information and details of meetings and helplines.

• Citizens Advice have offices all over the UK, offering free and confidential advice on a variety of topics, including immigration.