R (on the application of W, X, Y, and Z) v The Secretary of State for Health The Secretary of State for the Home Department (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr. Justice Silber
Judgment Date15 May 2014
Neutral Citation[2014] EWHC 1532 (Admin)
Docket NumberCase No: CO/3064/2012

[2014] EWHC 1532 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr. Justice Silber

Case No: CO/3064/2012

Between:
R (on the application of W, X, Y, and Z)
Claimants
and
The Secretary of State for Health
Defendant
The Secretary of State for the Home Department
Interested Party

David Wolfe QC and Nick Armstrong (instructed by Deighton Pierce Glynn) for the Claimants

Marie Demetriou QC and Sarah Love (instructed by Treasury Solicitor) for the Defendant

Julie Anderson (instructed by Treasury Solicitor) for the Interested Party

Hearing dates: 18 and 19 March 2014

Mr. Justice Silber

I. Introduction

1

On 31 October 2011, the Immigration Rules (HC385) ("the Rules") were amended so as to insert an immigration sanction which could be imposed on some people not resident in the United Kingdom 1 seeking to enter or to remain in the United Kingdom, who had unpaid NHS debts of at least £1000, but which were not incurred for accident and emergency services 2, family planning services and the treatment of illnesses/infections with public health implications. The immigration sanctions that can be imposed on those non-residents on account of that indebtedness are that their applications for entry clearance, leave to enter the United Kingdom as well as for leave to remain would then "normally" be refused.

2

There is no challenge to the legality of the regime, because the challenge of the claimants now relates to the way in which certain specified limited items of information relating to the non-resident patient ("the specified limited information") is transmitted by the NHS trusts and the NHS foundation trusts (which I will refer to collectively as "the NHS bodies"), which had provided the medical services, to the Secretary of State for Health ("the Secretary of State") who then passes it on to the Home Office 3, which would then, "normally" impose an immigration sanction on the person seeking to enter or to remain in the United Kingdom who had those unpaid debts. The specified limited information comprises the name and date of birth of the patient and where available his or her address, nationality and travel document number with expiry dates as well as the amount and date of the debt and the NHS trust to which it is owed. It is said not to be more intrusive than the information which NHS bodies would pass to the debt collection agencies which they use.

3

The Claimants (with the exception of W) are persons with an interest in the regime either because they have been charged or because they are liable or are potentially liable to charging. Their counsel, Mr David Wolfe QC, challenges the mechanics of the regime on the grounds that:-

(a) There is no power first for the NHS bodies to pass on the information to the Secretary of State, or for him then to pass it on to the Home Office for a number of reasons including the confidential nature of this information ("The Vires Issue"); and

(b) Even if there is such power, the Guidance issued by the Secretary of State in the "Guidance implementing the Overseas Visitors Hospital Charging Regulations" ("the Guidance") is unlawful because it purports to require the NHS bodies to share data whereas the NHS bodies should have a discretion whether or not to do so ("the Fetter Issue").

4

He seeks declaratory relief that the immigration sanction regime is flawed because of those grounds.

5

Ms Marie Demetriou QC, counsel for the Secretary of State, together with and supported by Ms Julie Anderson, counsel for the Secretary of State for the Home Department ("the Home Office"), contend on the Vires Issue that there is power first, on the part of the NHS bodies to transmit the specified limited information relating to the patient to the Secretary of State, and then second, on the part of the Secretary of State, to pass it on to the Home Office. It is denied that the specified limited information is confidential or private, but if it is, the requisite balancing exercise shows that it is permissible for it to be transmitted.

6

Ms Demetriou and Ms Anderson submit on the Fetter Issue that the Guidance was not unlawful because it gave discretion to the NHS bodies or if it did not give discretion, there were good and valid reasons for not doing so and so it was not wrongful. Not surprisingly, Ms Demetriou and Ms Anderson both adopted each other's submissions and I will refer to those submissions as "the Defendant's submissions", although Ms Demetriou made the overwhelming majority of submissions. I am grateful to all counsel for their helpful oral and written submissions.

7

Permission to pursue this claim was given by Arden LJ after Collins J had refused permission after an oral hearing. The handing-down of this judgment had to be postponed for some weeks at the request of counsel because of their unavailability.

II. The Parties

8

I will summarise the positions of the Claimants very briefly because the determination of this application does not depend on their dealings with the health and immigration authorities or their particular issues but rather it is a challenge to the mechanics of the immigration sanction regime. With the exception of the First Claimant, W, whose situation has changed over the course of the proceedings and now has limited leave to remain, all the Claimants are persons with an interest in the regime either because they have been charged, or are liable or potentially liable to be charged for medical services.

9

X and her family are "overstayers" with no basis at present for remaining in the United Kingdom, except that they have an outstanding claim under both the Immigration Rules and Article 8 of the ECHR that was at the time of the hearing due to be heard by the First-Tier Tribunal. X had to commence judicial review proceedings in order to ensure that the Home Office considered her claim and issued the decision to which she was entitled. If this had not occurred, X and her family would have been in a position of limbo with an arguable immigration claim awaiting consideration as well as being liable for NHS charging which they could not pay.

10

Y also had his immigration claim refused and is awaiting a Tribunal appeal. He is therefore lawfully here but is liable to immigration sanctions because he had medical services.

11

Z had an entry clearance to visit the United Kingdom lawfully to see her husband, but she was refused leave to enter apparently on the basis that she was pregnant and she was detained. She was later released and had her child in December 2011, but she was liable to charging for the maternity treatment she received. Her NHS debt of £2,550 for that treatment was communicated to UKBA and which showed the nature of the treatment that she received, but it is accepted that this was obviously unlawful. The Home Office refused her application relying in part on the NHS debt and she had or has an appeal against that decision.

12

It is also said that apart from her substantive immigration claim, Z's refusal of leave to enter was "not in accordance with the law" and so it is liable to be overturned if the present claim is successful. This, according to her counsel, is because part of her refusal of leave depended on illegal data sharing which is part of the immigration sanction regime.

III. The Charging of Non-Residents for Medical Services

The duty to provide free health services and the right to charge

13

The Secretary of State has a number of general duties in relation to the promotion and provision of the health service in England, which are set out in s. 1 of the National Health Service Act 2006 ("NHSA 2006"), which together with other relevant statutory material is set out in the Appendix to this judgment. That section includes (with emphasis added) duties on the part of the Secretary of State:-

"(1) [to] continue the promotion in England of a comprehensive health service designed to secure improvement (a) in the physical and mental health of "the people of England"; and

"(2)… [to] exercise the functions under the [NHSA 2006] to secure that services are provided in accordance with the [NHSA 2006]".

14

The general rule is that the health services provided in England have to be free of charge, but that rule is subject to the exception, which is contained in s. 1(3) NHSA 2006 and which states that the general rule applies:-

"except in so far as the making or recovery of charges is expressly provided for by or under any enactment, whenever passed".

15

There is an express provision constituting an exception relating to non-residents which is contained in s.175 NHSA 2006 and which allows the Secretary of State to make regulations:-

"provid[ing] for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine" for services provided under the NHSA 2006 to persons "not ordinarily resident in Great Britain".

16

Section175 (4) of the NHSA 2006 gives the Secretary of State the power to calculate such charges on any basis that "he considers to be the appropriate commercial basis". This is consistent with the statutory purpose of providing a health service for "the people of England" in s.1 (1) (a) NHSA 2006, and not of providing an international health service.

17

This power to make charges for medical services given to non-residents was first exercised in 1982 and the current exceptions are set out in the National Health Service (Charges to Overseas Visitors) Regulations (2011 SI 2011/1556, as subsequently amended in 2012) ("the Charging Regulations"). The Guidance, the...

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