Department of Health Guidance Ruled Unlawful...

...But 'Failed' Asylum Seekers Are Still Not Entitled To Free NHS Treatment.

The Court of Appeal has ruled that Department of Health guidance which forbids hospitals from providing temporary healthcare to destitute migrants with chronic illnesses is unlawful.

The court case brought by a Palestinian man, Mr. A, with chronic liver disease, who had had his asylum claim refused and, prevented from travelling back to the West Bank by Israeli travel restrictions despite having agreed to return, was refused treatment by West Middlesex University Hospital.

Dept. of Health guidance states that hospitals should not provide treatment to such patients unless they pay for it in advance, ignoring the fact that many of these patients are destitute, many cannot return home, so they are not treated until they require life-saving treatment.

The hospital eventually agreed to treat Mr. A after he started an urgent High Court action. However, he continued the case, arguing that the guidance was unlawful and it was preventing thousands of other refused asylum-seekers from accessing urgent treatment. The High Court ruled that refused asylum-seekers could be entitled to free treatment if they had been here long enough and were following the rules, but the government appealed the decision.

The Court of Appeal, whilst rejecting the High Court’s ruling that refused asylum-seekers could be classed as being legally resident in the country, upheld the decision that the guidance was unlawful as it did not make it clear enough that hospitals must consider providing treatment where a patient cannot return home and cannot pay for the treatment in advance.

However, this still leaves a situation where there is no automatic right to health care for failed' asylum seekers who are unable to return to their country of origin and that it up to individual hospitals to make decisions about treatment on a case by case basis. (See: 1, 2)