Charging overseas visitors: when are you an asylum seeker?

Further light was shed upon the application of the NHS (Charges to Overseas Visitors) Regulations 2015, recently, by the case of R (ota ERA) v (1) Basildon & Thurrock University Hospitals NHS Foundation Trust (2) Southend University Hospitals NHS Foundation Trust [2019], which will have provided welcome clarification on the definition of ‘asylum seeker’ for Overseas Visitors Managers.

In 2015 ERA, a Nigerian national who had been living in Ghana, was diagnosed with advanced breast cancer and came to the UK for treatment on the strength of a visa permitting entry on medical grounds. In between treatments, she returned to Ghana. In 2017, while still in the UK, she applied for further leave to remain “outside the Immigration Rules because of compassionate and compelling circumstances” and on the grounds of Articles 3 and 8 of the European Convention on Human Rights, saying she could die if forced to leave the UK without treatment. The Secretary of State refused her application on the basis that she could get treatment in Ghana. Her immigration appeal was outstanding at the time this judicial review came to be heard.

In the meantime, the NHS had advised her that she was liable for the cost of treatment and had invoiced her accordingly. The way the charging system works is that if you are an overseas visitor (ie: not ordinarily resident in the UK) then, unless the healthcare treatment you receive is an exempt service, you are prima facie chargeable unless you can bring yourself within one of the exempt patient categories; here that of asylum seeker.

The issue at stake in this judicial review was whether ERA was exempt from charges for the cancer treatment on the basis of having made a yet-to-be-determined asylum application. The High Court determined that whether or not an individual was an asylum seeker for the purpose of regulation 15(b) was a matter of substance not form. The question was what type of protection was sought and why; not which ECHR articles were being relied on or how the Secretary of State had dealt with the further-leave-to-remain application (ie: the ‘pure’ immigration issue) in his decision letter.

The Court concluded that it was not plausible to suppose that the Secretary of State would intentionally include a case such as this within the concept of an asylum claim, where the barrier to removal was alleged to be differential health care standards between the UK and Ghana. The definition of asylum seeker, by contrast, meant those who came under the Geneva Convention and individuals seeking subsidiary or temporary protection. “Importing [a] broad notion of international protection into the meaning of asylum in regulation 15(b), via paragraph 327 of the Immigration Rules, [was] wholly inappropriate and wrong”, said Kerr J. ERA was, therefore, not an asylum seeker for the purposes of regulation 15(b).

This decision meant that ERA was properly chargeable for her cancer treatment. It is not yet known whether she will appeal. In the meantime, the concise judgment in this case is worth reading and can be found here.

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