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Case Law

High Court
Legal provision Directive 2003/9/EC
Area Asylum and subsidiary protection, Social advantages
Form of Discrimination Direct discrimination
Grounds of discrimination Discrimination on ground of racial or ethnic origin
Topic Discrimination by public bodies
Asylum seekers , United Kingdom , Discrimination on ground of racial or ethnic origin .
Key facts of the case:

The Claimant challenged the lawfulness of guidance given by the Department of Health to National Health Service providers which indicated that they were required to charge for secondary medical services provided to failed asylum seekers. The claimant was a failed asylum seeker but his removal directions had not been set. He was refused treatment for a serious liver complaint based on the guidance.

Main reasoning/argumentation:

The National Health Service (Charges to Overseas Visitors) Regulations 1989 requires charges to be made to certain individuals who are not ordinarily resident in the United Kingdom. The claimant claimed asylum at a port of entry and was therefore given temporary admission to the United Kingdom under paragraph 21(1) of Schedule 2 to the Immigration Act 1971. The claimant argued that despite being a failed asylum seeker, he still had temporary admission until his removal directions were set and therefore was still an ordinary resident for the purposes of the Regulations.

Key issues (concepts, interpretations) clarified by the case:

The key issues were what constitutes being an ordinary resident of the United Kingdom and whether a failed asylum seeker who had been granted temporary admission to the UK but had not had removal directions set was still an ordinary resident and entitled to medical care free of charge.

Results (sanctions) and key consequences or implications of the case:

The Court applied the principles from the House of Lords authority of Szoma v The Secretary of State for the Department of Work and Pensions [2006] 1 AC 564 and held that a such a person was still ordinary resident in the United Kingdom and that as a result the guidance was unlawful in requiring the National Health Service to charge failed asylum seekers. No further sanction was imposed.
The decision means that up to 11,000 failed asylum seekers who have not had removal directions set, will not have to pay for medical treatment.

It is however important to note that the respondent has appealed the decision to the House of Lords which is yet to be heard.