Shu & Anor, R (ota) v The Secretary of State for Health And Social Care & Anor [2019] EWHC 3569 (Admin) 

This article originally appeared in Issue 4 (March 2020).

SHU, a national of Ghana, entered the UK in 2004 without entry clearance. She gave birth to E in 2007. In 2014, E received a life-saving liver transplant on the NHS at Kings College Hospital. E acquired British citizenship in 2018. 

Under the National Health Service (Charges to Overseas Visitors) Regulations 2011 and the later 2015 equivalent, charges were raised in respect of treatment received by E and SHU. SHU was liable for E’s debt as E was a minor. The debt had been written off as SHU was destitute. The debt was not, however, extinguished. 

Discrimination – Articles 8 and 14 ECHR 

The essence of SHU’s challenge to the Regulations was that the NHS charging regime unjustifiably discriminated between, on the one hand, parents of a child who acquired status as an ordinarily resident British citizen before receiving treatment and on the other hand, a parent (like SHU) with a child who acquired that status after receiving the treatment. The parents in the first group would not incur any debt, as SHU had. 

First, SHU had to show her claim fell within the ambit of a Convention right. She relied on Article 8, arguing that the ambit of Article 8 included :

“the intrusion into family life of the instability and anxiety caused by a large, unpayable debt to the NHS and fear of its possible repercussions for the long-term status of one of the Claimants.” [112]. 

Foster J found that, on the facts of the present case, the intrusion in this case did not reach the threshold of seriousness, such that it fell within the ambit of Article 8, particularly given that the debt had been written off. 

In any event, Foster J then went on to consider whether the difference in treatment was justified. She found at [124] to [125]: 

“In my judgement there is in this case such an obvious, and relevant difference between the Claimant and E on the one hand, and those with whom they seek to compare themselves that the situations just cannot be regarded as relevantly analogous. 

It cannot properly be said that a person who received treatment whilst here without the status of ordinary residence (or indeed their mother, whatever her status), is in an analogous position to a person who receives treatment here after the acquisition of ordinary residence. The very reason for the differential treatment is that difference in immigration position.” 

She went on to say at [129] that:

The policy objective of deterring those with a less strong connection to the UK from travelling to or remaining in the UK, and receiving free health treatment, is plainly rational and constitutes a legitimate aim. The aim of protecting a finite national service under financial and resource pressure from use by visitors and those who, in general, do not make a permanent contribution to paying for it, is in my judgement clear and proportionate.” 

She further found that, in so far as there were exceptions to the charging regime for asylum seekers, refugees, humanitarian protection cases, victims of human trafficking and children in local authority care, the justification for those exceptions was reasonable, and those groups were in a different position from E. 

Immigration Rules 

A further limb of SHU’s challenge was to paragraph 322(12) of the Immigration Rules. This paragraph provides that, where debts are unpaid, the Secretary of State for the Home Department “should normally” refuse any future applications made by SHU regarding her own leave to remain. 

The Claimant argued that this paragraph was ultra vires as it pursued a non-statutory purpose – it was a Padfield challenge. The Claimant argued that this was effectively a debt-collecting provision. 

The SSHD argued that it

“part of the policy advanced on behalf of the SSHD was the desirability of encouraging those who “kept their social compact”: in other words paid their dues and obeyed the rules.” [151]. 

Foster J found that this was not an irrational policy aim. She further stated:

“The Rule in question is part and parcel of a general policy safeguarding NHS resources on the basis of rational choice but, necessarily, seeking to deter others from incurring unpaid health debts by making them relevant to future grants of permission to remain.” 

Overall, therefore, the Claimant lost on both grounds of challenge.