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No exemption from NHS charges for human rights applicants


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R (ERA) v Basildon And Thurrock Hospitals NHS Foundation Trust [2019] EWHC 1249 (Admin) is about whether someone who has applied for leave to remain in the UK on human rights grounds can get the same exemption from NHS charges as asylum seekers.

The National Health Service (Charges to Overseas Visitors) Regulations 2015 allow NHS hospitals to recover charges for services provided to overseas visitors. But they contain an exception for anyone who has applied for “temporary protection, asylum or humanitarian protection under the immigration rules”.

ERA is from Ghana and is suffering from cancer. She made two trips to the UK to obtain private medical care and then applied for leave to remain on the ground that removing her to Ghana, where she would not be able to obtain cancer treatment, would breach Article 3 of the European Convention on Human Rights. She argued that the term ‘asylum’ in the Regulations should be interpreted to include cases where it is claimed that removal would breach Article 3.

Mr Justice Kerr rejected that argument:

I am satisfied for those brief reasons that importing Mr Knafler’s broad notion of international protection into the meaning of asylum in regulation 15(b), via paragraph 327 of the immigration rules, is wholly inappropriate and wrong. I accept the submission of Mr Barrett that regulation 15(b) bears its natural and ordinary meaning and applies to, first, asylum seekers in the classic sense, who rely on the Geneva Convention; second, to applicants for humanitarian protection, or what in the EU jurisprudence is called “subsidiary protection”; and third, to applicants for temporary protection.

He based this conclusion on his view that the purpose of the regulations would be undermined by allowing overseas visitors to circumvent the charging regime by claiming that removal would breach Article 3 because of a lack of medical treatment in their country of origin. The explicit reliance on the political motivations behind NHS charges is an unnecessarily elaborate way to resolve a case which in reality turns upon a narrow point of construction.

Unfortunately for ERA, then, the exemption does not cover a human rights claim unless it also falls into the category of temporary protection, asylum or humanitarian protection claims.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers