The current Prime Minister coined the term “hostile environment” when she was in charge at the Home Office. It is easy to forget that these measures, aimed at making life intolerable for immigrants without status, began during the last Labour government. Tabloid hysteria about hospitals and GP surgeries clogged up by health tourists led to section 175 of the National Health Service Act 2006 and a system of charging foreigners for health services.

Section 175 states that regulations can be enacted to charge those who are not “ordinarily resident in Great Britain” for health care services. The Act did not fully explain who would or would not be considered “ordinarily resident”, so it has been left to case law to develop the meaning of the term. Since its inception it has been clear that it does not apply to those without lawful immigration status.

R (A) v Secretary of State for Health [2017] EWHC 2815 has revisited the concept once more. This recent case involved a claimant who was suffering from end stage kidney disease. He had received treatment on the NHS in the form of dialysis but required a kidney transplant to provide some form of quality of life.

Ordinary residents have a priority claim on scarce organ donations

The NHS Blood and Transplant Directions 2005 set out who should be prioritised for donated organs. The directions separate candidates into two groups. Group one includes, among other criteria, those who are “ordinarily resident in the UK”. Group two comprises those who do not fall within any of the categories set out in group one.

The claimant in R (A) was a Ghanaian man in the UK illegally and therefore not considered ordinarily resident. As he had been placed in group 2, it was highly unlikely that he would receive a donated kidney in the UK due to the scarcity of organs.

Mr A argued that the restriction on organ donations to patients without lawful immigration status was contrary to the Secretary of State’s duty in section 1(1) of the NHS Act 2006. This provision declares that the Secretary of State has a duty to promote a comprehensive health service designed to secure the “physical and mental health of the people of England”. He argued that this meant the Secretary of State did not have the statutory power to issue the 2005 directions limiting his access to a donated organ.

The Secretary of State stressed the need to have discretion when it comes to delivery of health care services, particularly when it involved the distribution of finite resources such as organs for donations. He went on to make the bold claim that “the expectation of donors has been and is that they should be allocated first to those lawfully resident in the country” [paragraph 31].

No healthcare duty to people in England, only the “people of England”

The court dismissed the claim, saying that

We agree with the observations of King J, at first instance in R (A and B), that the duty set down in Section 1 of the 2006 Act is a “target duty”, and as such gives emphasis and colour to the more specific duties and powers of the Secretary of State under the Act [paragraph 41].

The court followed the approach of the Court of Appeal in R (YA) [2009] EWCA Civ 255. That case highlighted the choice of wording in section 1 – “people of England” rather than “people in England” – which implied that the drafters were not intending the provision of healthcare services to apply to everyone currently in the country but only those with a “legitimate connection” to the UK. It follows that the Secretary of State could then justifiably prioritise those who are ordinarily resident for donated organs.

No indefinite leave to remain, no transplant

The decision may be understood in terms of the need to manage finite NHS resources. However it is a reminder of just how insidious the hostile environment has become. The Immigration Act 2014 has restricted access to NHS services even further, limiting the meaning of “ordinarily resident” to migrants who have indefinite leave to remain in the UK. This means that anyone with a time limited visa, and EU nationals post-Brexit, will be at the back of the queue in future for donated organs.

There may be some who would have agreed with the submission of the Secretary of State that donated organs should be prioritised for those who are legally in the UK. Many more would consider it harsh to prioritise patients with ILR above those who may have lived here lawfully for many years.