R (ERA) v Basildon and Thurrock University Hospitals NHS Foundation Trust [2019] EWHC 1249 (Admin) 

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

The High Court held that a person seeking to avoid removal from the United Kingdom on the basis that she would not have access to life-saving cancer treatment in her home country did not constitute an asylum seeker, and so a Trust’s decision to charge her for NHS treatment was lawful. 

Under section 1(4) of the National Health Service Act 2006, NHS services are to be provided free of charge unless any enactment provides otherwise. Overseas visitors (persons not ordinarily resident in the United Kingdom) are required to pay for such services unless a particular exemption applies, pursuant to the National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the Charges Regulations”). 

ERA suffered from advanced breast cancer and travelled to the UK specifically for the purpose of undergoing treatment. Prior to the expiry of her leave to remain, she applied for further leave outside the scope of the Immigration Rules and on human rights grounds. Eventually, her argument crystallised as being reliant on Articles 3 and 8 of the European Convention on Human Rights (“ECHR”). It was asserted that the lack of adequate medical facilities in Ghana, where ERA had been living, exposed her to a deterioration in her condition which would infringe the Article 3 prohibition on torture, inhuman and degrading treatment (an argument based on a line of authority stemming from D v United Kingdom (1997) 24 EHRR 423, as considered and applied in GS (India) v Secretary of State for the Home Department [2015] 1WLR 3312). The application was refused, although the decision was being appealed to the Immigration and Asylum Chamber of the First-tier Tribunal. 

The Defendant Trust sought to charge ERA, as an overseas visitor, for the treatment she had received. She opposed the imposition of charges in her case, relying on an exemption in section 15(b) of the Charges Regulations which provides that no charge may be recovered to an overseas visitor who “has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under the immigration rules”. 

She argued that her application for further leave to remain in reliance on Articles 3 and 8 amounted to an application for asylum (she did not rely on the terms “temporary protection” or “humanitarian protection”, saying that they were otiose). In advancing her case she relied on paragraph 327 of the Immigration Rules, which provides as follows: 

327. Under the Rules an asylum applicant is a person who either; 

(a) makes a request to be recognised as a refugee under the Refugee Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for them to be removed from or required to leave the United Kingdom, or 

(b) otherwise makes a request for international protection. “Application for asylum” shall be construed accordingly. 

It was argued that by including the words “otherwise makes a request for international protection”, rule 327 broadened the definition of asylum seeker beyond the traditional understanding of those fleeing persecution, to encompass those who sought protection against an infringement of their Article 3 rights, including cases where such infringements arose from lack of access to adequate medical facilities. 

Kerr J, in a succinct but clear judgment, rejected the argument. He found that the policy of the Charges Regulations was to require overseas visitors to pay for treatment, and the interpretation being advanced by the Claimant ran contrary to that objective. Accordingly, it ought not to be adopted when an alternative interpretation existed which was consistent with that objective. Contextual support for that approach was to be found in Direction 2004/83/EC (“the Qualification Directive”) which dealt with qualifications for refugee status and international protection and the subsequent CJEU case of M’Bodj v Belgium [2015] 1WLR 359, which excluded cases based on differential healthcare standards from the scope of that Directive. 

Whilst further specific reasoning is set out in the court’s judgment, it is clear that this was a case where the court felt that the Claimant’s argument simply stretched the words of the relevant legislation an insupportable distance beyond their natural meaning. The Claimant’s situation was undoubtedly a sympathetic one, but someone seeking medical treatment would not naturally be considered an asylum seeker.