Department of Health guidelines that instructed health authorities to deny free treatment to failed asylum seekers have been ruled unlawful by a High Court judge.
The test case, involving a Palestinian man with liver disease named only as Mr A, could change the entitlement to free health care of about 11 000 asylum seekers whose deportation has been delayed after rejection of their application.
Mr A agreed to return to the West Bank in 2005 when his application for asylum was refused, but his departure has been held up for three years by travel restrictions and problems with his documentation.
He sought judicial review of a decision by West Middlesex University Hospital NHS Trust to deny him free treatment, initially lodging his claim in 2006. Although the health department disputed his right to treatment, after he mounted his legal challenge it agreed to treat him while his case went ahead.
The department’s guidelines, issued in 2004, instructed trusts to charge for the treatment of failed asylum seekers who did not meet the legal definition of “ordinarily resident.” Those who had been in the United Kingdom for fewer than 12 months did not meet this criterion, the guidelines state.
But Mr Justice Mitting last week ruled that such an interpretation of “ordinarily resident” status had no legal basis. The status is not restricted in time but may be given at the discretion of the authorities, he said, and should be granted to failed asylum seekers who were in the UK legally because of unavoidable delays in their removal.
Noting that “many, perhaps most” asylum seekers were “penniless,” the judge ruled that hospitals had a duty of care.
The court rejected, however, an argument by Mr A’s lawyers that denial of treatment breached the human rights of asylum seekers. “We actually lost our broader argument and won on a rather dry technical point,” said Mr A’s solicitor, Adam Hundt of the firm Pierce Glynn.
The ruling left open the possibility of appeal, which the government is now considering. Health minister Ben Bradshaw said, “We do not agree with the judge’s findings. It is not reasonable to expect the NHS to have to provide free treatment to failed asylum seekers. We will need to study the full judgment carefully to establish whether an appeal is in the interests of the public.”
Moyra Rushby of the healthcare charity Medact, which has campaigned on the issue, welcomed the ruling. She said, “Responsibility for immigration lives firmly with the Border and Immigration Agency and not with our doctors and nurses, who had been placed in an appalling situation by the government.”
The National Aids Trust supported Mr A’s claim. Its chief executive, Deborah Jack, said, “For years failed asylum seekers have been denied free treatment for long term conditions, including HIV. Many have faced enforced ill health as government policy has left them destitute and without health care.”