Judicial Review

R (A) v SECRETARY OF STATE FOR HEALTH & WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST (INTERESTED PARTY) - CO/8095/2006

Background

Mr A is a 32 year-old Palestinian. He came here in 2005 and claimed asylum but the claim was refused - like many asylum seekers, despite the ongoing human rights abuses in the Palestinian occupied territories he did not satisfy the Home Office that he was suffering political persecution within the meaning of the Geneva Convention. He then signed up to the IOM's voluntary return programme and got section 4 support from NASS, but he cannot return home as he has no travel documents. He is stuck in the UK indefinitely, without leave to remain but unable to leave, living on vouchers of £35 per week.

A suffers from chronic liver disease with several consequential illnesses. His condition deteriorated in mid-2006, and he was admitted to West Middlesex University Hospital through A&E. The treating clinicians suspected that he had lymphatic cancer, and they planned to do a laparoscopy and liver and lymph biopsy to determine whether he needed a liver transplant or chemotherapy. Because of his immigration status they refused to give him this treatment unless he paid for it in advance. He was unable to pay for the treatment so he was sent home. Grounds We helped A challenge the legality of that decision and the government's guidance on which the decision was based, by applying for judicial review in the High Court and naming both the NHS trust and Dept of Health as Defendants.

The main grounds for the challenge, which may help others, are that: 1) The NHS Act 2006, which sets out the statutory framework within which the NHS operates, makes no provision for treatment to be refused. NHS Trusts can charge for treatment, but they cannot withhold it. To do so is acting outside their statutory powers, which are to provide treatment based on reasonable need. They can charge for it, but they cannot withhold it. [NB - opponents would say that if a customer can't/won't pay then the provider should not keep on giving them services. We say that we are dealing with patients, not customers.

The principle may be correct for a publican or mobile phone provider, but it doesn't apply to water companies, for example, who cannot switch off people's supply even if they owe thousands. Healthcare is, in our view, a tad more important than a telephone]. 2) A claimed asylum at port of entry to the UK. He did not enter clandestinely - he immediately presented himself to the immigration authorities on arrival and was granted temporary admission subject to reporting restrictions. He has not, therefore, broken the law, so he is not here illegally. He remains lawfully present in the UK notwithstanding the refusal of his claim, until such time as forcible removal directions are set with which he fails to comply (it is worth noting that the Home Office cannot remove people to the West Bank at present, and probably for the foreseeable future), or he is granted leave to remain.

So he is lawfully here, and has been for well over a year, and cannot return, so he should be considered lawfully resident in the UK and entitled to free treatment under the Regulations. 3) Because A cannot return to his country of origin for treatment the refusal constitutes a breach of his rights under Articles 2 (right to life), 3 (right to freedom from inhuman and degrading treatment), 8 (right to private life) and 14 (right to freedom from discrimination) of the European Convention on Human Rights. We say this applies equally to those who have made applications for leave to remain on human rights grounds that have not been determined, as it is not reasonable to expect people to return in those circumstances, as other recent case law concerning the provision of shelter and food to people in this situation reflects.

Those cases establish that if a homeless and destitute person without leave to remain cannot be expected to voluntarily return