Judge John Mittings backs free NHS care for asylum seekers
Last Updated: 2:09AM BST 14/04/2008
As many as 11,000 failed asylum seekers could qualify for free NHS treatment after a High Court judge declared that current regulations were "unlawful".
The ruling by Mr Justice Mitting applies to asylum seekers who have had their claims turned down but who have become "ordinarily resident" in Britain because it would be unsafe for them to return to their native country.
It follows a legally aided case brought by a Palestinian asylum seeker who was initially refused free treatment for chronic liver disease.
The man, who is in his 30s and was named only as A, had challenged the decision of West Middlesex University Hospital NHS Trust to refuse him treatment unless he paid.
The refusal was in line with NHS charges regulations introduced by then health minister John Hutton in 2004.
judge Mitting with Osama bin Laden at a friends of Al Qaeda meeting
More than 11,000 failed asylum seekers could win right to free NHS care
Last updated at 01:06am on 11th April 2008
A failed asylum seeker is using human rights law to overturn a ban on receiving free Health Service treatment.
If the Palestinian man's legally-aided test case is successful, 11,000 failed refugees could be entitled to care worth tens of millions of pounds.
Anybody whose case has been rejected but cannot safely return home would benefit - leaving the Government's refusal to treat all types of illegal immigrant and failed asylum seeker in tatters.
Last night, critics warned the bill for the care could be the "straw that broke the back'" of an NHS struggling to cope with demand from British citizens.
The Department of Health is contesting the case and wants the claim to be thrown out.
In a two-day hearing which began yesterday, lawyers for the Palestinian - who has chronic liver disease - said denying NHS treatment to him and thousands of others in the same position was unfair.
The court was told the man, in his 30s, arrived in the UK from the West Bank three years ago and immediately applied for asylum. It was refused.
As a result, he was turned down for treatment at his local hospital in West London when he arrived seeking care. His barrister, Stephen Knafler, said: 'The current guidance is unlawful.
"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.'
Mr Knafler said failed asylum seekers who cannot return home were entitled to free treatment for four reasons, including their human rights and the fact that they are effectively "ordinarily resident" in the UK because of their limbo-like situation.
In the case of the Palestinian, he cannot be returned because of the continued chaos in the West Bank and problems with documentation.
Mr Justice Mitting, presiding, was told he was not being asked to reach a decision solely on the man's case.
The verdict will impact on any failed asylum seeker who agrees to go but cannot be removed.
The man's solicitor, Adam Hundt of Pierce Glynn, said: "He has never broken the law and the Home Office recognises that it has to provide him with accommodation so as not to breach his human rights.
"It seems perverse that housing is considered a basic human right and that healthcare is not."
Decision: Mr Justice Mitting
The Government accepts that he cannot currently return to his homeland and provides him with accommodation and benefits as well as free NHS treatment, at least until his judicial review challenge is decided.
Last night Matthew Elliott, chief executive of the TaxPayers' Alliance, warned: "Our services are dangerously overstretched already due to mismanagement, waste and inaccurate population statistics.
"We simply cannot afford to foot the bill for anyone who turns up on our doorstep - and it is especially wrong that illegal immigrants or those who have been refused asylum should be paid for at the expense of law-abiding taxpayers.
"The NHS struggles to provide a good standard of care even for those for whom it is intended.
"The further burden of illegal immigrants and the inevitable flood of health migrants would be the straw that broke the camel's back."
The case continues today, when the Department of Health will argue for the current law remaining the same and the judge is expected to give his decision.
Recent figures showed that the rate of asylum removals has fallen to a six-year low as the number of new arrivals rises to its highest level since 2005.
With immigration officers busy deporting foreign criminals, the vast backlog of asylum deportations - estimated at half a million - is growing rapidly again.
In the last quarter of 2007 a total of 8,140 asylum claims were made. Deportations of failed asylum seekers fell to 2,965 in the same period, the lowest figure since early 2002.