R (A) v Secretary of State for Health

[2009] EWCA Civ 225; [2009] WLR (D) 113

A failed asylum seeker was not “ordinarily resident” within the United Kingdom for the purposes of entitlement to treatment as of right by the National Health Service free of charge. The Guidance as to how a health body should exercise such discretion as it had to grant or withhold treatment in such a case was unlawful for lack of clarity.

The Court of Appeal so stated, inter alia, when allowing the appeal of the Secretary of State for Health, and allowing the cross-appeal of the claimant, A, a failed asylum seeker, from the decision of Mitting J of 11 May 2008 in the Queen’s Bench Division [2008] EWHC 855 (Admin); The Times, 13 May 2008, allowing A’s claim for judicial review of decisions of West Middlesex University NHS Trust, by which he found that a failed asylum seeker could become “ordinarily resident” in the United Kingdom so as to be eligible for free treatment by the National Health Service, and that the applicable Guidance, directed to the National Health Service (Charges to Overseas Visitors) Regulations 1989 was unlawful in as much as it advised health service trusts to charge failed asylum seekers who would otherwise be treated as ordinarily resident.

WARD LJ said that the general principle was that services provided under the statutory scheme were provided free of charge in England and Wales: s 1(2) of the National Health Service 1977 (now s 1(3) of the National Health Service Act 2006 in England and s 1(3) of the National Health Service (Wales) Act 2006). There were exceptions, the material one being that an NHS trust “shall make and recover charges from an overseas visitor”, ie a person not “ordinarily resident” in the United Kingdom: reg 2 of the 1989 Regulations, made under s 121of the 1977 Act (now ss 175 and 124 of the 2006 Acts, for England and Wales respectively). However, no charge was to be made either to an overseas visitor who had “resided lawfully ” in the United Kingdom for not less than one year immediately preceding the time when the services were provided (reg 4(1)(b)), or to a person accepted as a refugee, or who had made an application for leave to stay as a refugee which had not been determined (reg 4(1)(c)). There was also non-statutory Guidance on implementing the 1989 Regulations, in which advice was given as to when to charge, depending on the urgency of the treatment needed, the clinician to decide whether treatment was “immediately necessary” or “urgent” or “non-urgent”. There were accordingly three issues: (1) whether a failed asylum seeker could be “ordinarily resident” in the United Kingdom; (2) whether (for the purposes of reg 4(1)(b)) A had resided lawfully in the United Kingdom for the period of not less than one year immediately preceding the time when health services were provided to him; and (3) whether an NHS trust had any discretion to withhold treatment from a failed asylum seeker. As to the first two issues: having had regard to, and applying, the test as to ordinary residence in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, a failed asylum seeker, whether an at-port or an in-country applicant, could not establish ordinary residence. The words were to be given their ordinary meaning; and asylum seekers were clearly resident in the country under sufferance pending investigation of their claims, but they were not ordinarily resident. Turning to the exceptions within reg 4 of the 1989 Regulations: looking to “lawful residence” and to Szoma v Secretary of State for Work and Pensions [2006] 1 AC 564, a failed asylum seeker was unable to bring himself within reg 4(1)(b) as someone who had “lawfully resided” in the United Kingdom for a period of not less than one year immediately preceding the time when the health services were provided for him. Lawful presence and lawful residence were different; and an indulgence was granted to a claimant for asylum, not a right. Nor did the exceptions affording free medical treatment under reg 4(1)(c) apply to failed asylum seekers. These conclusions precluded failed asylum seekers from seeking free medical help, which led to issue 3: although a hospital was required to charge overseas visitors under s121 of the 1977 Act (now ss175 and 124 of the 2006 Acts) and reg 2, a health body had a discretion, not a duty, to withhold NHS hospital treatment from a patient not ordinarily resident in the United Kingdom who refused or was unable to pay for it. However, the applicable Guidance was unlawful since: (i) it failed to provide sufficiently clear guidance as to the continued provision of immediately necessary treatment in a case where a patient was unable to pay and might not be able to return his country; (ii) it failed to make clear whether urgent treatment should be withheld in circumstances where the patient could not pay and could not return to his own country before that treatment did become immediately necessary; and (iii) it failed to provide sufficiently clear guidance as to the circumstances in which non-urgent treatment might or would be provided to persons who could not reasonably be expected to leave the United Kingdom but were unable to pay for such treatment in advance.

LLOYD and RIMER LJJ agreed.

Appearances: Elisabeth Laing QC and Holly Stout (Solicitor, Department of Health) for the Secretary of State; Nigel Giffin QC and Stephen Knafler (Pierce Glynn) for A.