BHO, R (on the application of) v Secretary of State for Health and Social Care & Anor

A constitutive residence scheme under Article 18.1 of the Withdrawal Agreement requires both qualifying residence and a successful application. Residence status, and the associated Title II rights, arise prospectively when the application is granted. They do not retrospectively legalise a late beneficiary’s intervening residence during the period between expiry of the application deadline and submission of a qualifying late application.

Charging for NHS treatment during that intervening period constitutes indirect discrimination under Article 4 of Regulation 883/2004, but may be justified where it protects the integrity and effective operation of the constitutive scheme. The justification must still satisfy proportionality. Financial sustainability, fairness and administrative clarity were insufficiently established on the evidence in this case.

The claimant, a Latvian national with settled status, challenged charges imposed for medical treatment provided by the NHS to her daughter, AK. AK’s first application under the EU Settlement Scheme was refused, and a later application was accepted as late because there were reasonable grounds for delay. AK was subsequently granted settled status.

The claim concerned whether Article 18.1 of the Withdrawal Agreement operated retrospectively to render AK’s residence lawful during the intervening period, and whether charging for treatment during that period was objectively justified under Article 4 of Regulation 883/2004. The claimant also sought a reference to the CJEU.

1. Ground 1 dismissed. Article 18.1 permits a constitutive scheme requiring both residence in accordance with Title II, Part 2 of the Withdrawal Agreement and an Article 18.1-compliant application. The new residence status comes into existence only when both conditions are satisfied. It confers the relevant rights prospectively from grant. The text contains no provision extending those rights retrospectively to the late beneficiary’s pre-application residence. Articles 18.2 and 18.3 contain express deeming provisions for other periods, and the absence of equivalent provision for the intervening period was significant.
2. The distinction between using past residence to satisfy the residence pre-condition and determining when the granted status takes effect was conceptually important. Fertre v Vale of White Horse DC [2025] EWCA Civ 1057 did not decide retrospectivity and was neutral on that question. The issue was acte clair, so no CJEU reference was required.
3. AK was therefore an overseas visitor for the purposes of the National Health Service (Charges to Overseas Visitors) Regulations 2015 during the relevant period.
4. Ground 2 dismissed. The parties accepted that the charging provisions created indirect discrimination under Article 4 of Regulation 883/2004. Protecting the integrity and effective operation of the UK’s constitutive scheme was a legitimate objective. Charging only during the period when the beneficiary had neither granted status nor the benefit of a deeming provision was proportionate and did not go beyond what was necessary.
5. The evidence did not establish that NHS funding and planning, fairness between immigration groups, or administrative clarity independently justified the difference in treatment. Those conclusions did not affect the result because the constitutive-scheme justification was sufficient.
6. The NHS charges were not unlawful. The claim for judicial review was dismissed.

First instance judicial review. Swift J granted permission to apply for judicial review on 24 June 2025. The claim was dismissed by the High Court (Administrative Court).