A, R (on the application of) v West Middlesex University Hospital NHS Trust

Temporary admission under immigration legislation does not, by itself, prevent a person from being lawfully present for all purposes. The legal effect of a deeming provision must be confined to the statutory purpose for which it was enacted.

For ordinary residence, the relevant inquiry is whether the person has adopted the United Kingdom voluntarily and for settled purposes as part of the regular order of life. Residence must also be lawful. A failed asylum-seeker who claimed asylum at the port of entry may become ordinarily resident despite having only temporary admission. NHS charging guidance is unlawful insofar as it requires charges from such a person who would otherwise be ordinarily resident.

The claimant challenged guidance issued to NHS Trusts concerning charges under the National Health Service (Charges to Overseas Visitors) Regulations 1989. The guidance stated that failed asylum-seekers remained chargeable after their asylum claims had been finally rejected, even before removal directions were set.

The claimant’s individual treatment dispute was resolved by consent, leaving a general challenge to the lawfulness of the guidance. The central issues were the meaning of ordinary residence, the effect of temporary admission under the Immigration Act 1971, and whether the guidance lawfully distinguished between asylum-seekers and failed asylum-seekers.

1. The judicial review was allowed. The guidance was declared unlawful insofar as the last sentence of paragraph 6.24 advised NHS Trusts to charge failed asylum-seekers who would otherwise be treated as ordinarily resident.
2. “Ordinarily resident” had the same meaning in the Regulations as in the enabling provisions of the National Health Service Act 1977. The governing test was whether the person had adopted residence voluntarily and for settled purposes as part of the regular order of life for the time being. Lawful residence was an essential qualification.
3. Temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 did not make a person unlawfully present for every statutory purpose. The statutory fiction of non-entry had to be carried no further than the legislative purpose required. The reasoning in Szoma v Secretary of State for the Department of Work and Pensions was applied.
4. The reasoning in R v Barnet London Borough Council ex parte Shah meant that a person in breach of immigration law could not rely on unlawful residence to establish ordinary residence. That principle applied to an asylum-seeker who had not claimed asylum at the port of entry. It did not prevent a person lawfully present, subject to the limited statutory deeming provisions, from becoming ordinarily resident through significant voluntary residence.
5. Because the competing House of Lords authorities produced an unworkable result if applied mechanically, the court followed the pragmatic approach in R v Wandsworth London Borough Council ex parte O. Immigration status was properly determined by immigration authorities, while NHS Trusts determined entitlement to services by applying the ordinary residence test.
6. The remaining challenge was unnecessary for the declaration. However, the guidance’s treatment of immediately necessary, urgent and non-urgent treatment was not unlawful merely because of its terms. Article 8 of the Convention did not require medical treatment at a particular level, and the guidance was not discriminatory on the reasoning in (Morris) v Westminster City Council.
7. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed. Permission to appeal was granted, with the possibility of a leapfrog certificate to be considered.

First-instance judicial review. The claimant’s individual treatment issue had previously been resolved by consent. The court granted permission to appeal and directed that the possibility of a leapfrog certificate be considered.