Guidance prohibiting failed asylum seekers from free health care is unlawful

The entitlement of people whose asylum applications have failed but have not returned to their home countries (frequently because they cannot be returned) to receive treatment on the National Health Service without being charged for it was considered by Mr Justice Mitting in R on the application of A v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (11-4-2008).   As Mitting J noted early in his judgment:

“many, perhaps most  [failed asylum seekers] are penniless.”

The law regarding someone’s entitlement to care and treatment under the NHS is contained in the National Health Service Act 1997.  Section 1 of that Act requires the Secretary of State to continue the promotion of a comprehensive health service free of charge unless specific legislation is passed enabling the Secretary of State to charge for services provided under the Act.   Section 3 of the Act gives the Secretary of State discretion to provide medical services “to the extent that he considers necessary to meet all reasonable requirements”, and section 121 empowers the Secretary of State to make regulations governing exceptions to the duty to provide medical services for free.  

Crucially section 121 only allows charges to be made in respect of services received by people who are not ordinarily resident in the UK.  So any Regulations made under section 121, and any guidance issued to enable NHS staff to establish whether they should or should not be charging someone for services, must also only apply to people who are not ordinarily resident.

The regulations which apply are the National Health Service (Charges to Overseas Visitors) Regulations 1989SI/1989/306.  The regulations define an overseas visitor as a person not ordinarily resident in the United Kingdom.  Regulation 2 requires NHS Trusts to recover costs for treatment for an overseas visitor unless after the trust concerned has made all reasonable enquiries, including enquiries about the overseas visitor’s state of health, that his or her case is not one to which the Regulations apply.  

The Claimant’s challenge was to the lawfulness of guidance produced by the Minister of State for Health which requires charges to be made for medical treatment given to people who are not “ordinarily resident” in the UK.  The guidance was effective from 1 April 2004.  

Overseas visitors who either have been recognised as refugees or who are waiting for their applications for asylum to be determined are specifically exempted from the Regulations.  So are people who have resided lawfully in the UK for a period of more than one year before their treatment began.  

The guidance states that someone is to be charged if, having waited for your asylum application to be decided for more than one year it is then refused.  So failed asylum seekers would be charged.   If however it is the case that failed asylum seekers were ordinarily resident in the UK – that guidance must be unlawful.  

In his judgment Mitting J considered what was intended by the words “ordinarily resident”.  It was clear from section 33 (2) of the Immigration Act 1971 that anyone whose residence in the UK was unlawful could not be regarded as “ordinarily resident”.  

The judge noted that people could either claim asylum at a port of entry, or they could enter the country with leave to enter or illegally and then claim asylum.  Either way they would usually be given temporary admission to the UK.  But could someone on temporary admission ever claim to be lawfully resident in the UK?

Mitting J decided that question by reference to the House of Lords’ judgment in Szoma v Secretary of State for the Department of Work and Pensions [2006] 1AC 564.  There the House of Lords had had to decide whether a person on temporary admission was “lawfully present” in the UK.  The Secretary of State said that someone could only be “lawfully present” if he or she had been given a specific grant of leave to enter.  This position was supported by the terms of section 11 of the Immigration Act 1971 Temporary admission would not do.   The House of Lords disagreed – stating that although that section said that people would not be considered to have entered the UK when they temporarily admitted – it did not follow that they were not lawfully present in the UK.  Their temporary admission had, after all, been authorised by an immigration officer.  

By analogy it followed that someone who had been given temporary admission and was therefore lawfully present was also lawfully resident.  

So failed asylum seekers had jumped the first hurdle by establishing that they were lawfully resident.  But were they  “ordinarily resident”?  This question was decided by reference to R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309.  In that case Lord Scarman had stated that the words ordinarily resident should be given their ordinary meaning:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."

For Mitting J this definition covered somebody who applied for asylum at a port of entry to the UK, and also someone who had failed in his asylum application.  Furthermore he was bound by Lord Scarman’s judgment: He said:

"I can see no reason why a person lawfully in the United Kingdom, except for certain specific statutory purposes, should not become ordinarily resident by dint of his voluntary wish to settle, coupled with residence for a significant period. Such a person fulfils Lord Scarman's test. A person whose claim to asylum (which might carry with it a wish to return to his native territory when the threat to him has lessened or gone), has failed, but who refuses to leave voluntary is likely to be determined to remain in the United Kingdom, if he can. Significant residence with that purpose is likely to provide proof of ordinary residence."

But the definition of ordinary residence did not cover someone who had entered the UK illegally and had then claimed asylum – Lord Scarman had stated later in his judgment that a person could not profit from his own unlawful act.  

By this reasoning people who had applied for asylum at a port would be entitled to free NHS treatment up until their removal from the UK – but people who had entered illegally would not be so entitled.   

The difficulty with Mitting J’s conclusion in this respect was that all asylum seekers, whether they were “port applicants” - or illegal entrants - would nonetheless have been eligible to be granted temporary admission.  The distinction made by Mitting J was unworkable – it would require NHS staff to charge some asylum seekers and not to charge others, and to carry out a complex determination of whether an individual patient had or had not applied for asylum at a port of entry.   

Relying therefore on Hale LJ’s judgment in R v Wandsworth London Borough Council ex parte O [2000] 1 WLR 2539 the judge  took a pragmatic approach.  By that authority decisions about who came into the UK lawfully and who did not should be left to the UK Borders Agency and not to the council (or in this case to NHS Trust staff).  For this reason the guidance which required NHS Trust staff to charge failed asylum seekers who would otherwise be treated as being ordinarily resident was unlawful.  

The Claimant also challenged the guidance’s imposing an obligation upon NHS Trusts to defer treatment even where that treatment was urgent while they determined whether the urgent treatment would be available to the patient in his or her home country.  The judge found that the test was rigorous but did not amount to a failure to act on the UK’s obligations under the European Convention on Human Rights.