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Are failed asylum seekers entitled to free healthcare?

8 May 2008

 

This very question was considered by the High Court in April in the case of Mr A, understood to be a Palestinian suffering from chronic liver disease. Mr A’s claim for asylum had been rejected but directions had not been set for his return because of the problems in his home territory. The issue facing West Middlesex University Hospital NHS Trust was whether Mr A should be charged for treatment as he was now a failed asylum seeker.

 

Summary

 

Whilst there is a general duty on the Minister of State for Health to provide health services free of charge, the National Health Services Acts of 1977 and 2006 provide for Regulations which allow “persons not ordinarily resident in Great Britain” to be charged.  The current Regulations are the NHS (Charges to Overseas Visitors) Regulations 1989 which stipulate when Trusts must charge for NHS care. To assist Trusts, Ministerial Guidance on how to implement the Regulations was introduced with effect from 1 April 2004. Following the High Court decision last month, parts of that Guidance have been deemed unlawful.

 

As a result of the High Court decision, failed asylum seekers who have yet to return home, like Mr A, will no longer automatically be charged for NHS care. Instead the Trust will need to consider if they, like other overseas visitors, satisfy the “ordinarily resident” test. The parties in Mr A’s case are still considering whether to appeal the High Court decision. If the decision stands, it is estimated that 11,000 failed asylum seekers whose return home has been delayed could now qualify for free healthcare.

 

So, where does that leave Trusts in the interim and what has changed?

 

The change

 

Refugees and asylum seekers whose formal applications to the Home Office have not yet been determined are entitled to free NHS treatment. Previously, where a patient was a failed asylum seeker there was a presumption under paragraph 6.24 of the Guidance that:

• Any new course of treatment would be charged for; and
• The fact that the patient may have been resident for 12 months was irrelevant

 

Now, following the High Court decision, where a failed asylum seeker fulfils the definition of “ordinarily resident” they are not to be charged. Therefore, any part of the Guidance which advises to the contrary is unlawful.

 

This change does make it easier for Trusts who would previously have had to check regularly that any patient receiving treatment over a long period of time was still waiting for their application to be determined.

 

How should Trusts proceed?

 

The regulations themselves are unchanged, it is only the parts of the guidance referred to above which are no longer to be followed. The following important points are the same:

• It remains for the Trust to decide whether a person is “ordinarily resident” but where they are not, there is an obligation on the Trust (subject to certain exemptions) to recover charges for services from the overseas visitor
• The test to determine the fundamental issue of whether a person is “ordinarily resident” must be applied to the circumstances of the individual patient and remains:

 

Whether they are living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as ‘settled’.

         

It may be difficult for a failed asylum seeker, who is refusing to return home but is instead determined to stay in the UK, and is likely to have been in this country for some time, to fail the “ordinarily resident” test.

 

• Exemptions from charge include services provided in an A&E department, treatment of certain dangerous and transmissible diseases and psychiatric treatment for persons detained under the Mental Health Act
  • Treat those whose life would be in danger if treatment was withheld or who would suffer serious injury
  • Defer for a short time the provision of urgent treatment pending a determination on whether or not the patient could receive such treatment in their home territory
  • Refrain from initiating treatment which is not urgent and which is chargeable, until a deposit is paid

 

We will watch with interest for a possible appeal of the High Court decision.

 

For more information or advise, please contact Lorna Hardman or Louise Barlow.

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.