Queen’s Bench Division

Published May 13, 2008

Regina (A) v West Middlesex University Hospital NHS Trust

Before Mr Justice Mitting

Judgment May 11, 2008

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.

Mr Justice Mitting so held in the Queen’s Bench Division in allowing the application of A for judicial review of the decision of West Middlesex University Hospital NHS Trust to deny him access to treatment by reason of guidance, dated April 1, 2004, of the Secretary of State for Health.

Mr Stephen Knafler for A; Miss Elisabeth Laing for the hospital.

MR JUSTICE MITTING said that the health secretary’s guidance concerned foreign nationals who had been given temporary admission; typically, they were failed asylum seekers for whom removal directions might not have been set, often because they could not be returned to their home state or territory. Many, perhaps most, were penniless.

The claimant argued that until removal directions were set, an unsuccessful asylum seeker was not to be charged for NHS services, save to the extent that an ordinary resident in the UK could be charged.

Under the guidance, if a patient was classed as ordinarily resident then charging did not come into play, even if the patient had only been in the UK for a few days or weeks but exemption from payment only lasted until a claim was determined.

An asylum seeker who did not claim asylum at the port of entry could not become ordinarily resident. That left an asylum seeker who claimed at port of entry, such as the claimant in the present case.

His Lordship could not accept that he could not become ordinarily resident until granted leave to remain. His Lordship could not see why a person lawfully in the United Kingdom, except for specific statutory purposes, should not become ordinarily resident.

In so far as the guidance had advised health service trusts to charge failed asylum seekers who would otherwise be treated as ordinarily resident, it was unlawful.

Solicitors: Pierce Glynn, Southwark; Solicitor, Department of Health.

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