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

The claim was a renewed permission application for judicial review challenging the National Health Service (Charges to Overseas Visitors) Regulations (SI 2015/238), in particular regulation 15 which removed the exemption from charging for persons supported under section 4(1) of the Immigration and Asylum Act 1999 but retained it for those supported under section 4(2). The claimant advanced four grounds: (i) unlawful consultation; (ii) insufficient inquiry (Tameside duty); (iii) breach of the public sector equality duty (section 149 Equality Act 2010); and (iv) discrimination contrary to article 14 ECHR.

The court refused permission. On consultation the judge held the 2013 consultation and earlier exercises (including 2010–11 material) were sufficient: the consultation fairly raised the question of "who should be charged", identified failed asylum seekers as a group to remain exempt and did not mislead consultees; the claimant’s argument required an impermissibly high standard (a near-draft of the final regulation). On the Tameside duty the court held the enquiries were adequate. On the equality duty the February 2015 equality analysis had due regard to protected characteristics and other identified groups, recognised limits of primary data, and reached conclusions that could not be said to be irrational. On article 14 the judge held the high threshold for successful challenge (measures being manifestly without reasonable foundation) was not crossed. The judge also addressed standing/prematurity and alternative remedies: Mr Marfo’s circumstances made any grant of relief doubtful and he had recently been granted s.4(2) support; Mr Ali had an alternative remedy via regulation 16 (Competent Authority trafficking determination) which he ought to pursue.

This is a first instance decision on a renewed application for permission to bring judicial review proceedings challenging the National Health Service (Charges to Overseas Visitors) Regulations (SI 2015/238), particularly regulation 15 which distinguished between persons supported under section 4(1) and section 4(2) of the Immigration and Asylum Act 1999 for the purposes of exemption from NHS charging.

The claimants (Mr Marfo and Mr Ali), both formerly detained, sought permission on four grounds: inadequate consultation before the Regulations were made; failure to make sufficient factual inquiry before enacting the Regulations (the Tameside duty); failure to comply with the public sector equality duty under section 149 Equality Act 2010; and unlawful discrimination under article 14 ECHR. Procedurally, pre-action letters were sent in April and May 2015; the claim was issued 20 May 2015; Warby J refused permission on paper on 3 July 2015; a renewal was filed and one claimant’s claim (Mr Ali) was directed to expedition by Nicola Davies J. The oral renewal hearing was before Kerr J.

The court framed the issues as (i) whether consultation was legally defective because consultees were not alerted to the distinction later enacted in regulation 15; (ii) whether the Secretary of State failed to make adequate factual inquiry about the cohorts affected; (iii) whether the equality analysis satisfied s.149; and (iv) whether article 14 was engaged and breached.

On consultation the judge applied established principles (citing R (Sumpter) v SS for Work and Pensions as a benchmark) and found the consultation sufficiently covered the question of who should be charged, identified failed asylum seekers as intended to remain exempt, and that consultees had opportunity to respond. The judge rejected the submission that a document must contain a near-final draft of the regulation.

On the Tameside duty the judge found the overall process, including previous consultations and the equality analysis, satisfied the duty to make sufficient inquiries. On equality, the February 2015 equality analysis (which acknowledged limited primary data, addressed protected characteristics and other identified groups including illegal migrants, and concluded any indirect discrimination was justifiable) amounted to due regard under s.149. On article 14 the judge held the challenge could not clear the high threshold required for success: the measure was not manifestly without reasonable foundation.

The judge also addressed standing and prematurity: Mr Marfo was, at the time of judgment, receiving s.4(2) support and was resident in Wales (where these Regulations did not apply), and the court considered relief doubtful even if the claim had arguable merit. For Mr Ali the judge identified regulation 16 (a trafficking-related exemption determined by the Competent Authority) as a suitable alternative remedy that he should pursue; the claimant’s own evidence arguably supported such an application. For these reasons the court refused permission to both claimants.

Permission to apply for judicial review is refused for both claimants. The court held that (i) the consultation process was not unlawfully deficient because the 2013 consultation and earlier material adequately raised "who should be charged" and identified failed asylum seekers as to remain exempt; (ii) the Secretary of State made sufficient inquiry before enacting the Regulations; (iii) the February 2015 equality analysis satisfied the public sector equality duty under section 149 of the Equality Act 2010; and (iv) an article 14 challenge could not surmount the high threshold applicable. The court also found standing/prematurity and alternative remedy issues (notably regulation 16 for trafficking victims) reinforced refusal of permission.

The claim was first considered on the papers by Warby J who refused permission on 3 July 2015. A renewal was filed and Nicola Davies J directed expedition for Mr Ali (but not Mr Marfo). The renewed, oral permission application was heard before Kerr J on 24 September 2015, who refused permission. No appeal history beyond these first instance steps is stated in the judgment.