NHS ban for failed asylum seekers is 'unlawful'

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Restrictions which prevent failed asylum seekers from receiving free healthcare under the NHS whilst they are waiting to return to their home countries were declared unlawful by the High Court yesterday.

The decision, which comes after years of lobbying from human rights groups, could affect up to 11,000 asylum seekers who are in limbo awaiting flights home.

The test case hinged on the treatment of a Palestinian man, in his thirties, named only as "A" for legal reasons. He brought the case against West Middlesex University Hospital NHS Trust, seeking judicial review of its refusal to provide care for a chronic liver disease.

The judge, Mr Justice Mitting, said that many, even all, failed asylum seekers and refugees were "penniless", and ruled that the hospital had an obligation of care. This will affect the policy of all NHS trusts to failed asylum seekers healthcare rights.

Guidelines issued in 2006 said that free treatment – unless in an emergency or life-threatening situation – was only available to those "ordinarily resident" in the UK for 12 months or more.

Barrister Stephen Knafler, for A, said that this legislation was unlawful, as it amounted to a violation of human rights.

Now this ruling will ensure that all asylum seekers who have cooperated with the Home Office, but cannot yet return home, have a right to be cared for in NHS hospitals.

"The current guidance is unlawful," said Mr Knafler speaking for A. "It is because it excludes all failed asylum seekers and other persons from treatment without a positive immigration right to reside. It fails to advise that those who cannot pay for NHS treatment and who cannot reasonably be expected to leave the UK remain entitled to treatment."

West Middlesex University Hospital NHS Trust is now providing care for A, who is also receiving financial support from the Home Office.

Donna Covey, chief executive of the Refugee Council, welcomed yesterday's judgement.

She said: "This is a very important and welcome judgement. We hope this ruling will put an end to the practice of preventing vulnerable, ill people from getting the treatment they need."

The Department of Health has been granted the opportunity to appeal yesterday's ruling as it was a test case.