R (on the application of YA) v. Secretary of State for Health

[2009] EWCA Civ 225
Download Judgment: English

YA was a Palestinian diagnosed with liver problems. He had been involved with Hamas but, when asked to participate in a political assassination, fled to Egypt. In Egypt, YA’s liver problems worsened, but he could not access medical treatment because of inadequate medical facilities. Therefore, he flew to London and claimed asylum. His claim for refugee status in the United Kingdom was refused on credibility grounds, and his appeal from the decision was rejected because his main reason for leaving Egypt was not his fear of Hamas but his desire to receive medical treatment in England.

YA could not access medical care in England, because the National Health Service Guidance (NHS Guidance) advised NHS Trusts to charge failed asylum seekers for medical care, and YA had no means to pay for medical services. He also could not return to the Middle East because he did not have travel documents, and the Palestinian authorities could not issue them because Palestine was not a recognized state. As such, YA could not access medical treatment at all for his liver problems.

The relevant legislation provided that treatment for those ordinarily resident in the United Kingdom would be free of charge, but that the Trusts would be entitled to recover fees from overseas visitors, unless they had first resided lawfully in the United Kingdom for 12 months, or were found to be refugees or had refugee status applications pending. The Guidance stated that failed asylum seekers did not fall into any of these categories, and would be charged for treatment even if they had been resident for 12 months prior to their application being refused. By the time his appeal was disposed of, YA had been living in England for longer than 12 months.

While a hospital eventually agreed to treat YA without charge, YA challenged the lawfulness of the NHS Guidance. The High Court declared the Guidance to be unlawful. The Secretary of State for Health appealed.

The Court considered three questions:

  1. Whether a failed asylum seeker could be ordinarily resident in the United Kingdom
  2. Whether the Appellant had been lawfully resident for 12 months, given the time it had taken to dispose of his application
  3. Whether the NHS Trusts had a discretion to withhold treatment from a failed asylum seeker

On the first and second question, the Court held that a failed asylum seeker, like YA, was not lawfully a resident in the United Kingdom. The Court emphasized that if an individual’s presence in the country was deemed unlawful, it could not constitute ordinary residence. It considered that asylum seekers who were temporarily in the country while their applications were being determined were not there as of legal right, but at the discretion of the host country, and were not granted rights to remain or to freely move within the community. Their presence could not therefore be considered “lawful” or “ordinary” residence for the purpose of the NHS Guidance if it was later determined that they were not entitled to asylum. As such, the time that YA had spent waiting for his asylum application to be determined did not count towards the residence requirement in the NHS Guidance and its related legislation and regulations.

On the third question, the Court held that it was implicit in the NHS Guidance that there was both a discretion to withhold as well as to allow treatment to be given when there was no prospect that a patient would be able to pay for it. However, while the Guidance outlined different actions for NHS Trusts to take based on the urgency of the need for treatment, it did not state how such discretion should be exercised where a patient like YA was not able to pay but needed urgent treatment. The Court therefore considered that the NHS Guidance required clarification, and invited the parties to make further submissions on the appropriate remedy in light of its findings.

The appeal was allowed.

“Whereas exceptions affording free medical treatment are made under regulation 4(1)(c) of the Charges to Overseas Visitors Regulations for those accepted as refugees and those whose claims for asylum have not yet been finally determined, no exception is made for failed asylum seekers. The public policy considerations which inform Lord Scarman's exception militate against their being allowed to claim the benefits of a free national health service. The result may be most unfortunate for those in ill-health like YA for they may now be at the mercy of the hospitals' discretion whether to treat them or not.” Para. 62.

“It would seem, therefore, that under the statutory scheme the hospital is required to charge overseas visitors but it does have a discretion it can exercise: the hospital can choose to treat or it can choose not to treat those who cannot or will not pay. The Secretary of State accepts and seeks a declaration to reinforce the discretion to treat for example those in immediate need. The respondent accepts that at the extreme end of the spectrum, if the hospital is faced with a wealthy overseas visitor who has no urgent need for treatment and could at any time return home and be treated there, then it would clearly not be very sensible if (faced with a refusal to pay charges) the Trust have to provide the treatment and then to try to pursue the individual in their home jurisdiction. In that instance the hospital could legitimately conclude that it was not necessary to provide services for that particular patient. The group of failed asylum seekers here are at the other end of the spectrum, being unable to pay and not being able to return home.” Para. 72.

“As for the Guidance, the issue is whether this guidance is sufficiently clear and unambiguous in the advice it gives to help decide whether to treat or not to treat an individual who, although chargeable in principle, does not in fact have the resources to pay for that treatment and who reasonably requires to be treated in the United Kingdom rather than returning to his country of origin for such treatment, either because he is not currently in a position to return at all, or because there is such a sufficiently pressing need for the treatment that there would be significant detriment to his health if that treatment had to wait his travel.” Para. 73.

“My conclusion is that it is implicit in the Guidance that there is a discretion to withhold treatment but there is also discretion to allow treatment to be given when there is no prospect of paying for it. How that discretion is to be exercised may depend on how long the failed asylum seeker will remain at large and the plight of those who cannot return should be identified and clarified in the Guidance.” Para. 77.