Judicial Review – No Exemption from NHS Charges for Overseas Visitors in Human Rights Based Application for Leave to Remain

4 June 2019

Article by: Colin Ricciardiello, Partner

Background

On 16th May 2019 Mr Justice Karr dismissed a human rights judicial review claim challenging charges levied under the NHS Charges to Overseas Visitors Regulations 2015 (“the 2015 Regulations”). Essentially this case concerned:-

  • The 2015 Regulations which govern the charging of overseas visitors receiving NHS treatment (being persons not ordinarily resident in the United Kingdom) and contain defined exceptions as to when the charges do not apply.
  • The exception to the requirement to charge overseas visitors under Regulation 15(b) where the overseas visitor has applied for “temporary protection, asylum or humanitarian protection under the immigration rules”.
  • The question whether someone who has applied for leave to remain the UK on human rights grounds is exempt from the charges as they are asylum seekers within the meaning of the Regulation 15(b) exception.

Facts

An anonymity order was made so the identity of the Claimant could not be published and she was accordingly referred to in the judgment as “ERA”.

ERA was a Nigerian national who had recently been living in Ghana and came to the UK with a visa for medical treatment. She made two trips to the UK to obtain private medical care in 2015 and 2016. Subsequently she had been receiving treatment at Basildon & Thurrock University Hospitals NHS Trust operated by Southend University Hospitals NHS Trust. They were respectively the First and Second Defendant and the Secretary of State for Health and Social Care (SSHSC) was an intervener.

Given the urgency of the application the Court ordered an expedited rolled up judicial review hearing whereby permission for judicial review and a substantive judicial review claim would be heard at the same time. Permission was granted as the claim passed the threshold of being arguable but the substantive claim failed.

The Claim

ERA applied for further leave to remain in the UK because of her medical condition under Human Rights grounds as it was asserted that there was a lack of adequate medical facilities in Ghana and a removal from the UK would breach Articles 3[1] and 8[2] of the ECHR and consequently Section 6 of the Human Rights Act 1998. That application for leave was refused (but subject to appeal) on the grounds that treatment could be reasonably continued in Nigeria. The Defendant Trusts determined that until ERA’s status was confirmed she remained liable for the total cost of her treatment.

ERA’s claim for exemption from charging was based on her being an overseas visitor who had made an application which had yet to be determined for the grant of asylum under Regulation 15(b). Further, the reference to “asylum” in 15(b) had the same meaning as paragraph 327 of the immigration rules relating to an asylum applicant. Limb (b) of paragraph 327 covers those who have made a request for international protection and ERA’s application for leave to remain also constituted a request for international protection. The argument was that the wording in limb (b) acted to “…broaden the concept of an asylum seeker so as to include within it not just conventional asylum seekers asserting a well-founded fear of persecution if returned to their home state but also a person such as ERA who relies on her need for medical treatment and on inadequate medical facilities in her home state” . (Paragraph 22 of the judgment).

The effect of these submissions was that a person who decides to make an application for leave to remain based on their medical condition and the inadequacy facilities in their home state thereby acquires an exemption from the charging regime under the 2015 Regulations and becomes eligible to receive free NHS services including non-urgent treatment. That, it was observed, opened the “floodgates” and ERA’s Counsels’ submission in response to opening the “floodgates” was that the Secretary of State could amend Regulation 15(b) to prevent this outcome.

Judgment

The High Court dismissed the claim and in doing so:

  • noted that the policy of the 2015 Regulations was to require overseas visitors to pay for NHS treatment except in defined cases where charging is not considered appropriate;
  • stated that it was not plausible to suppose that the Secretary of State would intentionally include within the concept of an “asylum” claim in Regulation 15(b) one where Article 3 of the ECHR applied by reason of differential healthcare standards. If that is what the language of Regulation 15(b) meant then a provision had been enacted which was contrary to the policy of the 2015 Regulations. Any construction should preferably avoid that result “… since I do not think that it conceivable that government would think it appropriate to exempt cases such as this from the charging regime”. (Paragraph 39 of the judgment).

In dismissing the claim the High Court accepted the submissions of SSHSC that:-

  1. ERA had not made out that any concept of “international protection”, as found in public international law, extended to claims based on differential healthcare standards;
  2. Importing the “… broad notion of international protection into the meaning of asylum in regulation 15(b), via paragraph 327 of the immigration rules, is wholly inappropriate and wrong”. The definition of asylum application 15(b) of the 2015 Regulations should be given its natural and ordinary meaning so that it applies to asylum seekers in the classic sense who rely on the Geneva Convention and to applicants for humanitarian protection (paragraph 48 of the judgment). ;
  3. ERA’s interpretation meant overlooking “superfluous inclusion with regulation 15(b) “of temporary protection and humanitarian protection and also treating them as asylum applications when they were plainly different to asylum.

Comment

This judgment provides a useful commentary and guidance on: the policy of the 2015 Regulations; how the interpretation of the 2015 Regulations should be consistent with that policy and importing definitions and terms from other provisions should be avoided if that produces a result which is contrary to the policy; the meaning of “asylum” in the charges exemptions in the 2015 Regulations.

[1] ARTICLE 3 - Prohibition of torture - No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

[2] ARTICLE 8 - Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

If the issues raised in this article are relevant to you and you would like further advice and support, please get in touch with Colin Ricciardiello at cricciardiello@sharpepritchard.co.uk or alternatively contact us on 020 7405 4600.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.

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