Joseph Barrett successful in NHS charging ECHR challenge


In R (ERA) v Basildon Hospital NHS Trust & Secretary of State for Health and Social Care [2019] EWHC 1249 (Admin) the High Court (Kerr J) has dismissed a human rights judicial review challenge to the NHS charging regime for overseas visitors contained in the National Health Service (Overseas Charging) Regulations 2015 (“the OCR 2015”).

The Claimant (ERA) contended that overseas visitors who resist removal from the UK based on arguments that inferior standards of healthcare in their country of origin would give rise to a breach of Article 3 of the European Convention on Human Rights (“the ECHR”) are to be regarded as seeking “international protection” under public international law, and therefore fall within the definition of “asylum applicant” under reg. 15(b) of the OCR2015, with the consequence that they are exempt from the NHS charging regime until such time as their Art. 3 ECHR claim is determined. The Secretary of State for Health and Social Care (“the SSHSC”) intervened, resisting the claim.

The High Court dismissed the claim, accepting the submissions of the SSHSC that: (i) the Claimant had failed to establish that any concept of “international protection” that may exist in public international law was wide enough to encompass claims based on differential standards of healthcare, (ii) the definition of “asylum applicant” in reg. 15(b) should be given its natural and ordinary meaning, and (iii) the Claimant’s proposed construction would render a number of elements of reg. 15(b) redundant and otiose, and should therefore be rejected. Click here for a copy of the judgment.