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The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2020

W.S.I. 2020/1607 · Made 18 December 2020

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Exiting The European Union, Wales

National Health Service, Wales

Made 18 December 2020

Laid before Senedd Cymru 21 December 2020

Coming into force in accordance with regulation 1(2) and 1(3)

The Welsh Ministers make these Regulations in exercise of the powers conferred by sections 124 and 203(9) and (10) of the National Health Service (Wales) Act 2006f1.

Annotations to the whole text

Footnotes

f1

2006 c. 42. See section 206(1) for the definition of “prescribed” and “regulations”.

Contents

  1. Part 1: General
  2. 1Title, commencement and interpretation
  3. Part 2: Amendment of the Principal Regulations
  4. 2Amendment of regulation 1
  5. 3Amendment of regulation 4
  6. 4Amendment of regulation 4A
  7. 5New regulations 4B, 4C and 4D
  8. 6Amendment of regulation 5
  9. 7New regulation 5A
  10. 8Amendment of Schedule 2
  11. Part 3: Revocation of the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019
  12. 9Revocation of the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019
  13. Signature
  14. Explanatory note

1Title, commencement and interpretation

(1)

The title of these Regulations is the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2020.

(2)

Except as provided in paragraph (3), these Regulations come into force on implementation period completion day.

(3)

Regulation 9 comes into force immediately before implementation period completion day.

(4)

In these Regulations, “the Principal Regulations” means the National Health Service (Charges to Overseas Visitors) Regulations 1989f1.

2Amendment of regulation 1

(1)

Regulation 1(2) (citation, commencement and interpretation) of the Principal Regulations is amended as follows.

(2)

At the appropriate place insert—

(a)

““the 2014 Act” means the Immigration Act 2014f1;”;

(b)

““competent institution” has the same meaning as in Regulation (EC) No 883/2004 or Regulation (EEC) No 1408/71, as the case may be;”;

(c)

““equivalent document” means a document which, for the purposes of a listed healthcare arrangement is treated as equivalent to an S1 healthcare certificatef2;”;

(d)

““immigration rules” means the rules laid before Parliament under section 3(2) (general provisions for regulation and control) of the Immigration Act 1971f3;”;

(e)

““listed healthcare arrangement” has the meaning given in regulation 1(3) of the Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019f4;”;

(f)

““Regulation (EC) No 883/2004” means Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems as it had effect immediately before implementation period completion dayf5;”;

(g)

““Regulation (EEC) No 1408/71” means Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community as it had effect immediately before implementation period completion dayf6;”;

(h)

““relevant services” means accommodation, services or facilitiesf7 which are provided, or whose provision is arranged, under the National Health Service (Wales) Act 2006f8 other than—

(i)

primary medical services provided under Part 4 (medical services);

(ii)

primary dental services provided under Part 5 (dental services);

(iii)

primary ophthalmic services provided under Part 6 (ophthalmic services); or

(iv)

equivalent services which are provided, or whose provision is arranged, under that Act;”.

(3)

For the definition of “member of the family” substitute—

3Amendment of regulation 4

(1)

Regulation 4(1) (overseas visitors exempt from charges) of the Principal Regulations is amended as follows.

(2)

In sub-paragraph (l), for “another” substitute “a”.

(3)

In sub-paragraph (m), after “member state” insert “or a British citizen”.

(4)

For sub-paragraph (o) substitute—

“(o)

in whose case the services are provided in circumstances covered by a reciprocal agreement—

(i)

with a country or territory specified in Schedule 2; or

(ii)

with an EEA state or Switzerland where that agreement is a listed healthcare arrangement; or”.

(5)

After sub-paragraph (r) insert—

“(s)

who—

(i)

is granted leave to remain in the United Kingdom under Appendix S2 Healthcare Visitor to the immigration rules, and

(ii)

in respect of whom a waiver to the immigration health charge applies,

except in the case of relevant services which do not form part of the planned healthcare treatment authorised by that person’s S2 healthcare certificatef1.”.

4Amendment of regulation 4A

(1)

Regulation 4A (exemption from charges during long term visits by United Kingdom pensioners) of the Principal Regulations is amended as follows.

(2)

In sub-paragraph (b), for “another” substitute “a”.

(3)

In sub-paragraph (c), for “another” substitute “a”.

5New regulations 4B, 4C and 4D

After regulation 4A (exemption from charges during long term visits by United Kingdom pensioners) of the Principal Regulations, insert—

“Overseas visitors with citizens’ rights

4B
(1)

No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who has an entitlement to the provision of those services without charge by virtue of a right arising from—

(a)

Title III of Part 2 of the withdrawal agreement;

(b)

Title III of Part 2 of the EEA EFTA separation agreement; or

(c)

the social security co-ordination provisions of the Swiss citizens’ rights agreement.

(2)

Subject to paragraphs (3) to (5) of this regulation, no charge may be made or recovered in respect of any relevant services provided to an overseas visitor who is a member of the family of another overseas visitor (“the principal overseas visitor”) if—

(a)

the overseas visitor is lawfully present in the United Kingdom;

(b)

the overseas visitor is visiting the United Kingdom with the principal overseas visitor; and

(c)

the principal overseas visitor is exempt from changes under paragraph (1).

(3)

The exemption in paragraph (2) only applies if both conditions in paragraphs (4) and (5) are satisfied.

(4)

The first condition is that—

(a)

the overseas visitor does not have a right under an agreement mentioned in paragraph (1), and

(b)

the reason that the overseas visitor does not have such a right is because the overseas visitor is not recognised as a member of the family (within the meaning of Article 1(i) of Regulation (EC) No 883/2004).

(5)

The second condition is that the relevant services provided to the overseas visitor are services that the overseas visitor would be entitled to receive without charge by virtue of a right under an agreement mentioned in paragraph (1) if the overseas visitor had such a right.

(6)

For the purposes of this regulation, unless otherwise provided, “member of the family” means—

(a)

the spouse or civil partner of an overseas visitor; or

(b)

a child in respect of whom an overseas visitor has parental responsibility.

(7)

In paragraph (1), “withdrawal agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the same meanings as in section 39(1) of the European Union (Withdrawal Agreement) Act 2020f1.

Overseas visitors with a United Kingdom issued S1 healthcare certificate or equivalent document

4C
(1)

No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who—

(a)

was ordinarily resident in an EEA state or Switzerland immediately before implementation period completion day,

(b)

continues to be ordinarily resident in an EEA state or Switzerland on and after implementation period completion day,

(c)

receives a state pension paid by the United Kingdom Government, and

(d)

holds a S1 healthcare certificate, or an equivalent document, issued to or in respect of that person by a competent institution of the United Kingdom.

(2)

No charge may be made or recovered in respect of any relevant services provided to—

(a)

the spouse or civil partner of an overseas visitor; or

(b)

a child in respect of whom an overseas visitor has parental responsibility,

if that overseas visitor is exempt from charges under paragraph (1).

Persons who make late applications under Appendix EU to the immigration rules

4D.
(1)

Subject to paragraph (4), no charge may be made or recovered in respect of relevant services provided to an overseas visitor to whom paragraph (2) or (3) applies during the period which begins on the date on which the application mentioned in paragraph (2)(b) or (3)(b), as the case may be, is made and which ends on the date on which that application is finally determined under Appendix EU to the immigration rules.

(2)

This paragraph applies to a person who is an overseas visitor by virtue of section 39 of the 2014 Act who—

(a)

is eligible to apply for leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and

(b)

makes a valid application for leave to enter or remain in the United Kingdom under that Appendix to those rules after the application deadline.

(3)

This paragraph applies to a person who is an overseas visitor by virtue of section 39 of the 2014 Act who—

(a)

was granted limited leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and

(b)

after the expiry of that limited leave to enter or remain, makes a valid application for indefinite leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules.

(4)

Where it is determined under Appendix EU to the immigration rules not to grant leave to enter or remain in the United Kingdom to a person pursuant to an application mentioned in paragraph (2)(b) or (3)(b), as the case may be, a Local Health Board or NHS trust must make and recover charges for any relevant services provided to that person during the period specified in paragraph (1).

(5)

Where a person is granted leave to enter or remain in the United Kingdom pursuant to an application mentioned in paragraph (2)(b) or (3)(b)—

(a)

if the Local Health Board or NHS trust has made charges for relevant services provided during the period specified in paragraph (1), it must not recover those charges;

(b)

if the Local Health Board or NHS trust has made and recovered charges for relevant services provided during the period specified in paragraph (1), it must repay any sum paid in respect of those charges in accordance with regulation 8.

(6)

In paragraph (2), “application deadline” has the meaning given in regulation 2 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020f2.”

6Amendment of regulation 5

In regulation 5(a) (exemption from charges for treatment the need for which arose during the visit) of the Principal Regulations, after “a national of a member state,” insert “a British citizen,”.

7New regulation 5A

After regulation 5 (exemption from charges for treatment the need for which arose during the visit) of the Principal Regulations insert—

“EU Exit: transitional arrangements

5A.

Where an overseas visitor who is ordinarily resident in an EEA state or Switzerland has—

(a)

before implementation period completion day received relevant services from a Local Health Board or NHS trust, or

(b)

on or after implementation period completion day received relevant services from a Local Health Board or NHS trust as part of a course of treatment which commenced before implementation period completion day,

the charges payable in respect of those services must be calculated in the same way as provided for by regulation 13(1) of the National Health Service (Cross-Border Healthcare) Regulations 2013f1.”

8Amendment of Schedule 2

(1)

Schedule 2 (countries or territories in respect of which the United Kingdom has entered into a reciprocal agreement) to the Principal Regulations is amended as follows.

(2)

At the appropriate place insert—

(a)

“Bosnia and Herzegovina”;

(b)

“Faroe Islands”;

(c)

“Kosovo”;

(d)

“Liechtenstein”;

(e)

“Montenegro”;

(f)

“North Macedonia”; and

(g)

“Serbia”.

(3)

Omit—

(a)

“Barbados”;

(b)

“Iceland”;

(c)

“Russian Federation”;

(d)

“the Union of Soviet Socialist Republics except the States of Estonia, Latvia, Lithuania and the Russian Federation”; and

(e)

“Yugoslavia”.

9Revocation of the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019

The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019f1 are revoked.

Signature

Vaughan Gething

Minister for Health and Social Services, one of the Welsh Ministers

18 December 2020

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the National Health Service (Charges to Overseas Visitors) Regulations 1989 (“the Principal Regulations”), which provide for the making and recovery of charges for relevant services provided under the National Health Service (Wales) Act 2006 (c. 42) to certain persons not ordinarily resident in the United Kingdom.

Regulation 1 contains commencement and interpretation provisions. Except for regulation 9, these Regulations come into force on implementation period completion day, as defined in Schedule 1 to the Legislation (Wales) Act 2019 (anaw 4). Regulation 9 comes into force immediately before implementation period completion day.

Regulation 2 amends regulation 1 of the Principal Regulations to insert definitions of “the 2014 Act”, “competent institution”, “equivalent document”, “immigration rules”, “listed healthcare arrangements”, “Regulation (EC) No 883/2004”, “Regulation (EEC) No 1408/71” and “relevant services”. It also amends the existing definition of a “member of the family”.

Regulation 3 amends regulation 4 of the Principal Regulations. Paragraphs (1) to (3) make minor amendments as a result of the United Kingdom’s exit from the European Union. Paragraph (4) provides an exemption from charges for overseas visitors in circumstances where this is captured by a reciprocal agreement with a country listed in Schedule 2 to the Principal Regulations or with an EEA state or Switzerland under a listed healthcare arrangement. Paragraph (5) provides that where a person with an S2 healthcare certificate is given leave to stay in the United Kingdom for the purposes of their treatment, and has the immigration health charges waived, charges can be made for the provision of relevant services that are not authorised by the S2 healthcare certificate.

Regulation 4 amends regulation 4A of the Principal Regulations to reflect the fact that the term “Member State” will not capture the United Kingdom after implementation period completion day.

Regulation 5 inserts new regulations 4B, 4C and 4D into the Principal Regulations.

Regulation 4B provides that persons who are in scope of Title III of Part 2 of the withdrawal agreement, Title III of Part 2 of the EEA EFTA separation agreement or the Swiss citizens’ rights agreement are able to continue to receive relevant services without charge where there is a right to this under Regulation (EU) No 883/2004. It also provides that the family members of such a person will be entitled to receive relevant services without charge, subject to specific conditions.

Regulation 4C provides that a United Kingdom national in receipt of a United Kingdom pension who is ordinarily resident in an EEA state or Switzerland and who has a United Kingdom issued S1 healthcare certificate (or equivalent document) will receive relevant services without charge. It also provides that the family members of such a person will also be entitled to receive relevant services without charge. Regulation 4D provides that a person who makes a late application under Appendix EU to the immigration rules will not be charged for relevant services which are provided while their application is being determined. If that application is unsuccessful they will be charged for the provision of those relevant services and, if an application is successful and if charges have been made and recovered, these will be repaid.

Regulation 6 amends regulation 5 of the Principal Regulations by adding “a British citizen” to the categories of persons who will be exempt from charges for needs arising treatment after implementation period completion day.

Regulation 7 inserts a new regulation 5A into the Principal Regulations as a result of the United Kingdom’s exit from the European Union. The new regulation provides that where an overseas visitor from an EEA state or Switzerland has either received treatment before implementation period completion day or is part way through treatment on implementation period completion day, the charge which applied before implementation completion day will apply in respect of that treatment.

Regulation 8 adds Bosnia and Herzegovina, the Faroe Islands, Kosovo, Liechtenstein, Montenegro, North Macedonia and Serbia to the list of countries in Schedule 2 to the Principal Regulations which concerns reciprocal agreements. Regulation 8 also removes from the list of countries in Schedule 2 Barbados, Iceland, Russian Federation, the Union of Soviet Socialist Republics and Yugoslavia.

Regulation 9 revokes the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019 which were prepared for a “no deal” EU Exit and which do not reflect the provisions of the EU withdrawal agreement, the EEA EFTA separation agreement or the Swiss Citizens’ rights agreement.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Department of Health and Social Services, Welsh Government, Cathays Park, Cardiff, CF10 3NQ.