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

A failed asylum seeker who remains at large under temporary admission or release is not ordinarily resident in the United Kingdom for the purpose of entitlement to free NHS hospital treatment. Such residence is by administrative indulgence and does not form part of the regular order of life contemplated by the ordinary residence test.

Lawful presence differs from lawful residence. The latter requires a right to reside supported by positive legal authority, such as leave to enter.

An NHS trust must charge a chargeable overseas visitor, but retains a discretion whether to provide treatment where payment cannot be made. Guidance governing that discretion must address patients who cannot pay or return abroad within a medically acceptable period. Guidance which fails to explain how urgent and non-urgent cases of that kind should be handled is materially unclear and misleading.

YA, a failed Palestinian asylum seeker suffering from serious liver disease, was temporarily admitted to the United Kingdom but had no leave to enter. He was destitute and unable to return to the Middle East. A hospital initially declined further treatment without payment after applying the Secretary of State’s non-statutory guidance on charges to overseas visitors.

Mitting J allowed YA’s claim for judicial review and declared the guidance unlawful insofar as it advised NHS trusts to charge failed asylum seekers who would otherwise be ordinarily resident. The Secretary of State appealed. YA cross-appealed concerning the guidance on withholding treatment from patients unable to pay.

The Court of Appeal considered whether a failed asylum seeker could be ordinarily or lawfully resident, whether an NHS trust could withhold treatment, and whether the guidance adequately explained the trust’s discretion.

1. The Secretary of State’s appeal and YA’s cross-appeal were allowed. A person temporarily admitted or released while liable to immigration detention is not ordinarily resident for the purposes of the NHS charging scheme. Although such a person is physically resident and may have voluntarily adopted an abode for a settled purpose, the residence is enjoyed under restrictions and in lieu of detention. It is residence by administrative indulgence, rather than residence forming part of the regular order of life. The statutory context also indicated that free NHS services were intended for people having a legitimate connection with England.

2. The ordinary residence test in R v Barnet London Borough Council, ex p Shah [1983] 2 A.C. 309 required a voluntarily adopted abode for settled purposes as part of the regular order of life. Its exception for unlawful residence, although obiter in that case, commanded the highest respect. The legality required in a statutory scheme conferring state benefits depended on construction and context, consistently with Mark v Mark [2005] UKHL 42.

3. Lawful presence and lawful residence were distinct. Szoma v Secretary of State for Work and Pensions [2005] UKHL 64 established that temporary admission could constitute lawful presence. It did not confer a right to reside. For regulation 4(1)(b) of the National Health Service (Charges to Overseas Visitors) Regulations 1989, lawful residence required positive legal authority, namely leave to enter. YA therefore could not obtain the 12-month exemption.

4. Under the National Health Service Act 2006 and the Regulations, an NHS trust must charge an overseas visitor. It nevertheless has a discretion whether to treat a patient who cannot or will not pay. That discretion includes both withholding treatment and providing treatment despite there being no realistic prospect of payment.

5. The guidance dealt adequately with immediately necessary treatment, which had to be provided regardless of ability to pay. It was materially unclear and seriously misleading concerning urgent and non-urgent treatment for patients who could neither pay nor return abroad within a medically acceptable time. It failed to explain what should happen when no deposit could be provided or what investigation should be made into the likelihood and timing of return. The position of patients unable to return had to be identified and clarified.

6. The precise order was deferred pending written submissions.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed on ordinary residence, lawful residence and the existence of a discretion to withhold treatment. YA’s cross-appeal was also allowed because the guidance was materially unclear and misleading. The precise order was deferred.

2. High Court, Queen’s Bench Division, Administrative Court: Mitting J allowed the judicial review claim on 16 April 2008. He declared the guidance unlawful insofar as it advised NHS trusts to charge failed asylum seekers who would otherwise be ordinarily resident, but declined to determine the scope of the trusts’ discretion to withhold treatment.