A v West Middlesex University Hospital NHS Trust [2008] EWHC 855

This case concerned the lawfulness of Guidance relating to charges for NHS services to overseas visitors issued under regulations from the NHS Act 1977, services which would be provided free to those lawfully residing in the UK.  The (non-statutory) Guidance challenged, concerns those granted temporary admission to the UK under s21 of the Immigration Act 1971.  It states that “an overseas visitor is not defined in the Act but was considered by the House of Lords … NHS Trusts will need to consider whether such persons are living lawfully in the UK voluntarily and for settled purposes … and whether they have an identifiable purpose for their residence … and a sufficient degree of continuity to be properly described as settled”. It also states that there is no minimum period of residence that confers ordinary resident status and that the Secretary of State has no powers to charge for NHS treatment someone who is ordinarily resident in the UK.  The exemption from charging includes asylum seekers but only lasts until their claim is determined; “Trusts should regularly check the immigration status of such individuals and once they have completed 12 months residence they are no longer exempt from charges”.

The claimant (A) was refused treatment for a serious liver complaint based on the Guidance.  His case was that until removal directions are set a failed asylum seeker does not lose his or her ordinary resident status and is not to be charged for NHS services and that advice to the contrary is unlawful.

The court found that there is a general duty giving wide discretion for the Secretary of State to provide NHS services free of charge throughout England and Wales with the exception of certain services for which charges may be made under specific provisions e.g. NHS (Charges to Overseas Visitors) Regulations 1989.  Regulation 2(1) of these Regulations imposes a qualified obligation to recover charges for services from overseas visitors.  Regulation 3 exempts from charges services such as treatment in A & E, for serious and transmissible diseases and certain persons detained under the Mental Health Act 1983.  Regulation 4 provides further exemptions for persons who have resided in the UK for over 12 months or those who have been accepted as refugees or who have made applications for leave to remain as a refugee but whose claim has not yet been determined.

The main issue which the court had to determine was what was meant by ordinarily resident in s121 and s175 of the Immigration Act 1971.  This required some analysis. Section 33 of the Act states that a person cannot be ordinarily resident if they are in the UK in breach of the immigration laws e.g. they have entered illegally, did not claim asylum at their port of entry or their leave to enter has expired or been revoked.  A person whose claim and subsequent appeal for asylum has failed remains subject to temporary admission until removal directions have been set and may be still be lawfully present in the country.  Since A claimed asylum at his port of entry, he was lawfully entitled to be in the country after his asylum claim and appeals had been exhausted, whilst awaiting removals directions.  R v Barnet London Borough council ex parte Shah per Lord Scarman, followed. In the earlier judgment Lord Scarman could see no reason why a person lawfully in the UK should not be come ordinarily resident by virtue of his wish to settle coupled with residence for a significant period.  Thus the Judge in this case determined that the part of the Guidance advising NHS Trusts to charge failed asylum seekers who would otherwise be treated as ordinarily resident was unlawful.  He went on to say that not all of the Guidance was unlawful and the section titled “What Trusts need to do” relating to life-threatening illnesses or injuries, and urgent treatment was perfectly lawful and fulfilled State obligations under Article 8 ECHR.

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