Shu & Anor, R (On the Application Of) v The Secretary of State for Health And Social Care & Anor

A charging scheme for NHS treatment may distinguish between patients who were ordinarily resident when treatment was provided and those who acquired that status later. The distinction is not unlawful discrimination where it reflects a rational policy of protecting NHS resources and deterring access by persons without a sufficient UK connection. Anxiety and financial pressure caused by an unpaid NHS debt do not necessarily bring a claim within the ambit of Article 8; the connection must be sufficiently significant and direct. In the social-policy context, justification is assessed by whether the differential treatment is manifestly without reasonable foundation. An immigration rule taking unpaid NHS charges into account may pursue a prospective deterrent purpose and may fall within the statutory purpose of regulating entry and stay. The rule is not invalid merely because it may operate flexibly in compassionate cases.

The first claimant, a Ghanaian national, challenged NHS charges incurred for treatment provided to her child before the child acquired British citizenship and ordinary residence in the United Kingdom. She argued that the charging Regulations unlawfully discriminated against her and the child under Article 14 taken with Article 8 of the ECHR.

She also challenged paragraph 322(12) of the Immigration Rules, contending that it was ultra vires the Immigration Act 1971 and irrational because it permitted unpaid NHS debt to affect future applications for leave to remain. The Secretary of State relied on the policy of protecting NHS resources, deterring health tourism and recognising compassionate discretion. The court considered the ambit of Article 8, analogy, status, justification, statutory purpose and procedural objections.

1. The claim was dismissed. The challenge to the NHS charging Regulations and paragraph 322(12) of the Immigration Rules failed on the merits.
2. The circumstances did not fall within the ambit of Article 8. Although Article 8 may extend beyond its immediate core where a State voluntarily provides benefits or services, the alleged anxiety, instability and financial pressure arising from the debt created only an indirect connection with family life. The evidence did not show the serious and direct impact required to engage Article 8 in this context (paras [108]-[117]).
3. Even if Article 14 were engaged, the relevant groups were not in an analogous situation. A person treated while lacking ordinary residence was materially different from a person treated after acquiring ordinary residence. That distinction was central to the charging policy (paras [122]-[128]).
4. In any event, the differential treatment was justified. Protecting finite NHS resources and deterring persons without a lasting UK connection from obtaining free treatment were legitimate aims. The ordinary-residence bright line was rational and proportionate, and the Regulations included mitigating mechanisms, including discretion to write off debts. The policy was not manifestly without reasonable foundation. The position of children had been considered and the resulting policy choice was open to the Secretary of State (paras [129]-[148]).
5. Paragraph 322(12) was within the statutory purpose of the Immigration Act 1971. It was not merely a debt-collection mechanism. Its prospective deterrent effect, encouraging compliance with obligations and safeguarding NHS resources, was connected with regulating entry and stay. Its flexible operation in compassionate cases also meant that it was not irrational (paras [149]-[153]).
6. The claim was also premature in relation to any future immigration decision and too late in relation to the favourable decision already made. An extension of time would not have been appropriate (paras [155]-[159]).

First-instance judicial review in the High Court (Administrative Court). No earlier decision under appeal was identified.