Brexit notwithstanding, 2018 is likely to be remembered as the year the lid was blown on the government’s hostile environment policy. The debate about how difficult we want the lives of migrants unlawfully in the UK to be has now caught the attention of the mainstream media. It is therefore timely, as the year draws to a close, to consider the Court of Appeal’s recent judgment in the case of R (BA) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 and what it means for the ability of migrants in the UK to access NHS resources.

This case came before the Court of Appeal following a decision last year in the Divisional Court which I discussed in a blog post at the time. To review the facts again: the appellant is a Ghanaian man who was in the UK illegally when proceedings were brought. He was suffering from end stage kidney disease and had received treatment on the NHS in the form of dialysis but required a kidney transplant to provide some form of quality of life.

Donated organs are scarce. The NHS Blood and Transplant Directions 2005 sets out who should be prioritised. The directions separate candidates into two groups. Group 1 includes, among other criteria, those who are “ordinarily resident in the UK”. Group 2 comprises those who do not fall within any of the categories set out in Group 1. People on the Group 2 list do not have a realistic hope of a donation and their chances of survival are slim.

The appellant was originally placed on the Group 2 list and, understandably, sought to challenge the lawfulness of this.

Who is “ordinarily resident” in the UK?

The National Health Service Act 2006 introduced the 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. Whether someone is to be considered “ordinarily resident” was not fully explained, so it has been left to case law to develop who it encompasses. Migrants unlawfully in the UK were generally accepted to be outside of its scope, hence the appellant’s name being placed on the Group 2 list.

The appellant 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 minister has a duty to promote a comprehensive health service designed to secure the “physical and mental health of the people of England”.

Last year the Divisional Court dismissed the claim, stating that Section 1 of the 2006 Act is a “target duty”, which gives emphasis and colour to the more specific duties and powers of the Secretary of State under the Act [paragraph 41]. Following the approach of the Court of Appeal in R (YA) [2009] EWCA Civ 255, the court held that the intention was not for NHS healthcare to be for everyone currently in the country but only those with a “legitimate connection” to it. The Secretary of State could then justifiably prioritise those who are ordinarily resident for donated organs.

Some good news for the appellant….

Happily by the time the case came before the Court of Appeal, the appellant had been granted limited leave to remain and had now been moved up to the Group 1 list. Even though the outcome was now irrelevant to him, the court agreed to still proceed with the appeal on public interests grounds.

Interestingly, the Secretary of State conceded on one of the Appellant’s key grounds of appeal. Contrary to the conclusion of the Divisional Court, she accepted that the appellant was in fact covered by the target duty under Section 1 of the 2006 Act and that even as a illegal immigrant, the appellant falls within the definition of the ‘people who live in England’. The Court of Appeal declined to make a finding on whether the Secretary of State’s concession was correctly made though the lengthy analysis preceding it hints that even they were surprised by it.

…and some not so good news

As it was accepted between the parties that the appellant was covered by the section 1 duty, Counsel for the appellant argued that it was unlawful for the Secretary of State to prioritise between lawful and illegal residents for healthcare services, unless Parliament has expressly condoned it and none of the provisions of the 2005 regulations provided for this.

The Court of Appeal held at paragraph 59 that the ultimate power to make the 2005 regulations derives from section 3(1) of National Health Service Act 1977 and section 3(1) of the 2006 Act and its subsequent iterations. The central issue to be resolved was whether this gave the Secretary of State the power to limit the access to organs to those who are ordinarily resident in the UK. The court’s view was that she did and that she is entitled to do so, in spite of her target duty under section 1(1) as:

her judgement of what was necessary has to be informed by a present shortage of resources and the acute shortage of donated organs for transplantation in particular. [paragraph 62]

Access to organs — but only if you have ILR

The pressures of a growing and ageing population means that the government will increasingly have the unenviable task of managing finite NHS resources by weighing up competing demands.With this in mind, the fact that these resources should be prioritised for UK residents is a logical approach that will have some popular support.

However, it is important that “residence” and who it excludes is properly understood from an immigration perspective. As part of the extension of the hostile environment, the government enacted the Immigration Act 2014 which limited the meaning of “ordinarily resident” to migrants who have indefinite leave to remain in the UK. This means that it is not just “illegal immigrants” who have limited access to free NHS services but anyone with a time limited visa (including new arrivals from the EU from 2021).

As potential contributors to the UK economy and society, they may be surprised to learn that they would be placed at the back of the queue for donated organs should they ever need one. Prioritising organs for lawful residents is one thing, but distinguishing potential recipients by the type of immigration status they have rather the urgency of their medical needs is an inflexible approach which could have grave and unfair consequences.