As reported in last month's update, many migrants who are nationals of a country outside the European Economic Area (EEA) are now required to pay an immigration health surcharge so that they may use the National Health Service (NHS) in the UK.

Since the introduction of the surcharge on 6 April 2015, UK Visas & Immigration (UKVI) has issued a number of clarifications, some of which we have highlighted below. In addition we have received a number of enquiries from our clients as to whether it is the (sponsoring) employer or employee who should pay the surcharge. We have therefore asked our employment team to comment on this.

When and how much to pay

Importantly, migrants who are currently here in the UK and not in the process of applying for further leave, eg a Tier 2 migrant with leave from 1 January 2013 to 31 December 2015, do not have to pay the surcharge. The surcharge is paid only at the time at which an application for leave (whether entry clearance or leave to remain) is submitted.

The health surcharge is:

  • £150 per year where the migrant is a student; and
  • £200 per year for all other visa and immigration applications.

The surcharge will have to be paid in relation to the main applicant and all dependants who are applying. For example, a Tier 2 migrant with a wife and child will be required to pay 3 x £200 per year.

For visa applications made outside the UK, a non-EEA migrant will have to pay the health surcharge if he or she:

  • is applying for a visa to work, study, or join family in the UKfor more than six months (not including indefinite leave applications); and
  • has applied and paid the application fee on or after 6 April 2015.

For immigration applications made from within the UK, a non-EEA migrant will have to pay if he or she:

  • is making an immigration application for any length of time(not including indefinite leave applications); and
  • has applied and paid the application fee on or after 6 April 2015.

To pay the health surcharge and obtain a health surcharge reference number, this needs to be done online prior to the submission of the application.

Exceptions

In a sense, there are two types of applicants who are exempt from paying the health surcharge:

  • Those who do not have to pay the health surcharge, but who still need to obtain a health surcharge reference number via the online system.
    • Such individuals include, but are not limited to, Tier 2 (Intra-Company Transfer) migrants and nationals of Australia and New Zealand. A more detailed list can be found here.
    • With their health surcharge reference numbers, these individuals will be able to use the NHS.
  • Those who have neither to pay the health surcharge nor obtain a health surcharge reference number.
    • Such individuals include not only visitors, but those who would be granted entry clearance for a total period of less than six months, eg potentially some interns under certain Tier 5 government authorised exchange schemes. A non-exhaustive list can be found here.
    • These individuals will still be able to use the NHS; however, visitors will have to pay for NHS care at the point at which they use it.

Refunds

Presently, the online health surcharge system is fairly non-specific; it is therefore possible that migrants may "overpay", for example, when a Tier 2 (General) migrant is applying for leave to remain for one year, but the online system requires payment for three years. This Tier 2 (General) migrant should have to pay only £200, but the online option results in him or her paying £600. "Overpaid" health surcharges can quickly add up, especially for families.

UKVI's current workaround is that, once leave is granted, a refund will be applied to any "overpaid" fees. As "overpaid" health surcharges can be quite a burden, Penningtons Manches is in the process of raising this issue, and discussing possible solutions, with UKVI.

Who pays the health surcharge – the (sponsoring) employer or the employee?

As to whether the (sponsoring) employer or the employee should pay the health surcharge, the answer depends on the following factors:

  • An employer is not required to pay the health surcharge unless it has agreed to this, for example, it is possible that the employer has already agreed to pay all costs for any relevant Tier 2 application. The surcharge is effectively an additional application fee. This is because it is not possible for the migrant to opt-out of the surcharge (for example, because the employee has private health insurance).
  • In the future if an employer intends to pay towards some of the costs for an entry clearance or further leave to remain application, it will be more important for the employer to take care in specifying in the offer letter or contract which exact elements it will cover - application fee, health surcharge, legal costs or fees/surcharges for dependants - and any relevant limits.
  • If an employer intends to impose limits on the amount of financial support it will give in relation to application costs, it would be sensible to adopt a policy to ensure consistent treatment. Deciding what support to give on a case by case basis may lead to complaints about unequal treatment from those who feel they are receiving less support than colleagues.