ERA, R (On the Application Of) v Basildon And Thurrock Hospitals NHS Foundation Trust (Rev 1)

For the charging exemption for an overseas visitor who has applied for asylum, the court must examine the substance, nature and grounds of the application. Labels used by the applicant or decision-maker are not determinative. Regulation 15(b) of the National Health Service (Charges to Overseas Visitors) Regulations 2015 covers classic Convention asylum claims, humanitarian protection and temporary protection. It does not extend to a medical claim based on inadequate treatment in the applicant’s home country.

The claimant, a Nigerian national receiving cancer treatment in England, had applied for further leave to remain on human rights and compassionate grounds. The application relied substantially on her medical condition and the alleged inadequacy of treatment in Nigeria. The application had been refused, but her appeal to the First-tier Tribunal remained pending.

The NHS trusts treated her treatment as chargeable. She sought judicial review, arguing that her application was an undetermined application for asylum within regulation 15(b) of the National Health Service (Charges to Overseas Visitors) Regulations 2015. The central issue was whether a medical claim based on alleged article 3 risks arising from differential healthcare standards fell within that exemption.

1. Permission was granted because the claim was arguable, but the substantive claim was dismissed. The court also declined to dismiss the claim for delay.
2. Whether an application falls within regulation 15(b) depends on its substance, nature and grounds. The court must ask what type of protection is sought and why. Labels, cited ECHR articles and the decision-maker’s description are not determinative.
3. The application had not yet been determined because the claimant’s in-time appeal remained outstanding. That requirement was satisfied, but the application still had to fall within a protected category.
4. The Regulations establish a general policy that overseas visitors should pay for NHS treatment unless a defined exemption applies. It was implausible that regulation 15(b) intended to exempt a claim based on inadequate medical facilities in the country of return.
5. The words “under the immigration rules” mean pursuant to those rules. They do not import a broad and changing concept of international protection. The inclusion of temporary protection and humanitarian protection also told against treating all international protection claims as asylum claims.
6. The court gave significant contextual weight to M’Bodj v Belgium [2015] 1 WLR 3059, concerning medically based article 3 claims and the Qualification Directive.
7. Regulation 15(b) therefore covers classic Geneva Convention asylum seekers, applicants for humanitarian protection and applicants for temporary protection. The claimant’s medical application did not fall within those categories. The claim was dismissed.

This was a first-instance judicial review. No earlier judicial decision is stated in the judgment.