YA, R (on the application of) v Secretary of State for Health

YA, R (on the application of) v Secretary of State for Health

Failed asylum seekers are not ordinarily resident in the UK for NHS purposes once their claims are finally rejected, as their presence is not ordinary but by grace and favour, and they lack a positive right to reside. Lawful presence (temporary admission) is insufficient; lawful residence requires leave to enter or remain. The Secretary of State’s Guidance is not unlawful in advising that failed asylum seekers are chargeable for NHS treatment. However, NHS Trusts have discretion to withhold or provide treatment to chargeable patients unable to pay, and the Guidance is materially unclear and misleading regarding the exercise of this discretion, especially for those unable to return home.

Parties
Applicant/respondent: YA; Respondent/appellant: Secretary of State for Health
Jurisdiction
England and Wales
Judgment Date
30 March 2009
Procedural Posture
Judicial Review / Appeal From High Court (queen’s Bench Division, Administrative Court) to Court of Appeal
Outcome
Appeal allowed; cross-appeal also allowed in part; order to be drawn after further submissions.
Legal Topics
NHS Charges for Overseas Visitors, Ordinary Residence, Lawful Residence, Failed Asylum Seekers, Discretion to Withhold Treatment
Health Law Immigration Law Administrative Law NHS Charges for Overseas Visitors Ordinary Residence Lawful Residence Failed Asylum Seekers Discretion to Withhold Treatment

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Parties

YA

Applicant/respondent

Secretary of State for Health

Respondent/appellant

Procedural Posture

Judicial Review / Appeal From High Court (queen’s Bench Division, Administrative Court) to Court of Appeal

Legal Issues

  1. 1 Can a failed asylum seeker be ordinarily resident in the United Kingdom for NHS purposes?
  2. 2 Does a failed asylum seeker lawfully reside in the UK for the purposes of NHS Regulations?
  3. 3 Does an NHS Trust have discretion to withhold or provide treatment to failed asylum seekers unable to pay?

Ratio Decidendi

Failed asylum seekers are not ordinarily resident in the UK for NHS purposes once their claims are finally rejected, as their presence is not ordinary but by grace and favour, and they lack a positive right to reside. Lawful presence (temporary admission) is insufficient; lawful residence requires leave to enter or remain. The Secretary of State’s Guidance is not unlawful in advising that failed asylum seekers are chargeable for NHS treatment. However, NHS Trusts have discretion to withhold or provide treatment to chargeable patients unable to pay, and the Guidance is materially unclear and misleading regarding the exercise of this discretion, especially for those unable to return home.

Court Disposition

Appeal allowed; cross-appeal also allowed in part; order to be drawn after further submissions.