Asylum: Health fees unlawful for failed claimants who cannot leave

Thousands of failed asylum seekers who cannot return to their home countries should be entitled to free NHS treatment, a High Court judge has ruled.

In a test case, a failed Palestinian asylum seeker with chronic liver disease argued that West Middlesex University Hospital NHS Trust should treat his condition.

According to Department of Health guidance published in March 2006, failed asylum seekers should be charged for hospital treatment, including for HIV, except in emergency and life-threatening situations.

Guidance ‘unlawful’

But the judge last week ruled the guidance was unlawful where failed asylum seekers were unable to return to their home countries.

Justice Mitting said that they should be treated as ordinary residents until their removal from the UK, and told the court many, if not most, failed asylum seekers and refugees were “penniless.”

The Palestinian, known only as A for legal reasons, was unable to return due to the current turmoil in the West Bank and problems over documentation, the court heard.

He arrived in the UK three years ago from the West Bank and immediately applied for asylum, but was refused.

West Middlesex University Hospital NHS Trust is now providing A’s care and A is being supported financially by the Home Office pending his return home.

The Department of Health has been granted permission to appeal against the decision.

DH rejects judgement

A Department of Health spokesperson said: “We do not agree with the judge’s findings. It is not reasonable to expect the NHS to have to provide free treatment to failed asylum seekers. We will need to study the full judgement carefully to establish whether an appeal is in the interests of the public.”

The Refugee Council welcomed the ruling and cited cases showing the “devastating impact” of the healthcare charging regime.

“We have seen cancer sufferers being denied radiotherapy and an operation, pregnant women refused antenatal care then forced to give birth at home, victims of rape being denied treatment,” the council’s chief executive, Donna Covey, said. “We hope this ruling puts an end to the practice of preventing vulnerable, ill people from getting the treatment they need.”

The government is planning to introduce charges for primary healthcare for failed asylum seekers.

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More information

DH information on services for asylum seekers