England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 September 2015

MR JUSTICE KERR:

1. I have before me a permission application for a proposed judicial review challenging the validity and legality of delegated legislation for the National Health Service (Charges to Overseas Visitors) Regulations (SI 2015/238) ("the Regulations").
2. The Regulations were made in the exercise of powers conferred by section 175 and 272(7) and 272(8) of the National Health Service Act 2006. They were laid before Parliament on 16 February this year and entered into force from 6 April.
3. The matter has been argued rather more fully than is usual before me in a renewed hearing. A brief procedural history is this: the government recently introduced the Regulations (as I have said) and they provide for changes in the scope of exemptions from charging for medical treatment provided by the National Health Service (NHS), to persons not ordinarily resident in the United Kingdom.
4. The effect of the changes wrought by regulation 15 of the Regulations is this. Regulation 15 exempts from charging vulnerable migrants who lack ordinary residence in the United Kingdom and provides as follows:

No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who —

(a) has been granted temporary protection, asylum or humanitarian protection under the immigration rules;

(b) has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under those rules;

(c) is currently supported under section 95 (persons for whom support may be provided) of the Immigration and Asylum Act 1999 ("the 1999 Act");

(d) has made an application to be granted temporary protection, asylum or humanitarian protection under the immigration rules which was rejected and who is supported under —

(i) section 4(2) (facilities for the accommodation of a person) of the 1999 Act; or

(ii) section 21 (duty of local authorities to provide accommodation) of the National Assistance Act 1948; or

(e) is a child who is looked after by a local authority within the meaning of section 22(1) (general duty of local authority in relation to children looked after by them) of the Children Act 1989.

5. Thus, regulation 15(d)(i) exempts from charging persons in support under section 4(2) of the Immigration and Asylum Act 1999, ("the 1999 Act") but not persons in receipt of support under 4(1) of the 1999 Act. The government and the Secretary of State have chosen to remove from the scope of free health care persons receiving support under section 4(1) of the 1999 Act.
6. That provides as follows:

(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons —

(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b) released from detention under that paragraph; or

(c) released on bail from detention under any provision of the Immigration Acts.

And section 4(2) provides as follows:

(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if —

(a) he was (but is no longer) an asylum-seeker, and.

(b) his claim for asylum was rejected.

7. The solicitors acting for the first claimant, Mr Marfo, who is a national of Ghana, wrote a pre-action protocol letter on 29 April this year indicating that they intended to challenge the validity of the new regulation 15. That led to a dispute about whether Mr Marfo is properly to be regarded as a failed asylum seeker and thus eligible for support under section 4(2) of the 1999 Act.
8. That was followed by a further pre-action protocol letter on 13 May, notifying the proposed addition of the second claimant, Mr Ali, who believes he is from the Kashmir region of India (or Pakistan), as an additional claimant. He is now the second claimant. The claim was brought on 20 May this year in the name of both claimants, who at that stage were both in immigration detention.
9. The matter came before Warby J on the papers and on 3 July 2015 he refused permission. In the case of Mr Marfo, he took the view that he might well not be a failed asylum seeker but it was plain he was not presently affected by the Regulations and he regarded it as a matter of speculation whether he would ever be.
10. In the case of Mr Ali, he regarded him also as presently unaffected by the change in the law. He dismissed the claim for permission because of what he called "its lack of underlying merit" regarding the points made in the summary grounds of defence as to what he called "a convincing refutation of the attack on the lawfulness of the Regulations".
11. I have been told that, as it happened, on the same day that Warby J made that order, Mr Ali was released from detention; and that he has medical issues which have required him, I understand, to seek or make appointments for medical consultations; but he is not in receipt of treatment and has not been charged for any medical services he has received, or is receiving.
12. The claimant served a renewal notice on 10 July, and applied for an expedited hearing. That application came on the papers before Nicola Davies J, who on 20 August directed that Mr Ali's claim was fit for expedition but not Mr Marfo's, since he is being treated as a failed asylum seeker, and thus the new charges will not apply to him. I infer that she was probably aware that Mr Ali had by then been released.
13. It was agreed at the hearing last week (of which today is the concluding part) that I should deal with both permission claims together at this oral hearing.
14. It happened that, on 17 July, Mr Marfo was also released from detention. He too has medical issues. He is currently being accommodated in Wales, since his release from detention. The Regulations do not apply in Wales, a different regime applies which is not before the court but I understand it to be common ground that if Mr Marfo is moved, as is likely, he could be moved to accommodation in England where the Regulations do apply.
15. The claimant advances four grounds of challenge:

(1) failure to consult properly before introducing enacting regulations;

(2) failure to make sufficient enquiry before enacting the regulations;

(3) a breach of what is known as the public sector equality duty under section 149 of the Equality Act 2010; and

(4) discrimination under article 14 of the European Convention on Human Rights.

16. Mr Fortt, who appears for the Secretary of State, submits that those grounds of challenge are unarguable and, moreover, that the challenges are academic or premature on the basis that neither claimant is currently affected by the Regulations and that in addition they lack standing, and he relies on certain factual matters which I will come back to in that regard.
17. In relation to the first ground of challenge, Mr Armstrong submits in short that the consultation process that occurred failed to flag up a proposed distinction (subsequently drawn in regulation 15) between the cohort of people falling within section 4(1) of the 1999 Act, who were to lose their exemption from charging, and those falling within section 4(2) of the 1999 Act, who have retained it under the Regulations.
18. He says that a reasonable and informed consultee, such as organisations professionally concerned in that area – in particular, organisations interested in the welfare of immigrants and particularly those in detention and released from detention – were disabled from making an intelligent response during the consultation process and were prevented from making points they would have made, of which the Secretary of State, says Mr Armstrong, was deprived.
19. He sets out some of the points that he says would and ought to have been made and I need not go through them all, they are in his skeleton argument. He says that there was a consultation exercise carried out in 2010, but that that was too long ago to be of any relevance in assessing the fairness of the subsequent consultation that preceded the Regulations.
20. That was in 2013, and during that 2013 consultation, the relevant consultation document included a question numbered 13, phrased as follows:

Do you agree we should continue to charge illegal immigrants who present to treatment in the same way as we charge non-EEA visitors?

21. Mr Armstrong submits that the text beneath that question was insufficient to alert a reasonable intelligent consultee to the possibility that the cohort of people receiving an exemption from health charging under section 4(1) of the 1999 Act, were to lose that exemption.
22. Mr Armstrong submits that it is for that reason - the proof of the pudding being, as he submits in the eating - that none of the organisations recorded as having responded to this consultation document drew the distinction in their responses that were subsequently drawn in regulation 15.
23. That distinction, says Mr Armstrong, was not known about until much later, a few days before the regulations were laid before Parliament which was on 16 February 2015, when interested organisations were told about it for information purposes only and not as part of the consultation process.
24. An equality analysis was carried out in early 2015 but Mr Armstrong, for the claimant, submits that that came too late to inform any part of the consultation process; and that is quite apart from the separate attack he mounts upon it, to which I am coming later.
25. Mr Fortt, for the Secretary of State, in response, refers me to the recent exposition of the requirements of a fair and lawful consultation exercise in this context, that is to say in the context of making delegated legislation, in the judgment of Hickinbottom J in R (Sumpter) v The Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) at paragraph 94. Those propositions are not controversial. I need not go through them.
26. The case is, I understand, the subject of a pending appeal which was argued in July 2015 but judgment has been reserved; and the first instance decision pre-dates the recent Supreme Court decision in the Moseley case ([2014] 1 WLR 3947). Despite those points, it was not suggested by Mr Armstrong that the propositions relied upon and set out in Hickinbottom J's judgment are wrong or bad in law, and it seems to me that it is appropriate for me to accept them as a useful benchmark for the purposes of this application.
27. Mr Fortt, in his submissions, starting with the 2010 consultation exercise, referred me to passages from the 2010 document and submitted that the exemption then proposed was plainly, on its face, proposing to restrict support under section 4 of the 1999 Act to failed asylum seekers. He pointed out that failed asylum seekers are those who fall within 4(2) and not 4(1).
28. That means, he submitted, that by omission, it was proposed to exclude from the exemption those who are not failed asylum seekers whether they have section 4 support or not. So, submitted Mr Fortt, the issue had been consulted upon in 2010. That consultation, he reminded me from the documents, continued into 2011, with the government's response to the 2010 consultation document.
29. It then happened that in regulations enacted in 2011 (SI 2011/1556, the National Health Service (Charges to Overseas Visitors) Regulations 2011) those falling within the rubric of section 4(1) were exempted from charging. That is the provision that has recently changed in the 2015 regulations. There were no responses in the 2010 consultation specifically on that point, before the 2011 regulations were enacted.
30. That was the background to the consultation exercise that began in July 2013. Mr Fortt submitted by reference to the material in the consultation document beneath question 13, which I have already quoted, that the proposed streamlining (as it was put) of current exemptions did not include a proposal to remove an exemption from charging in the case of "all exemptions (ie free NHS care) related to our humanitarian obligations." Within that category, the third bullet point down referred to:

Failed asylum seekers receiving Section 4 or Section 95 support.

31. Mr Fortt submitted that this was a clear indication that the retention of an exemption from charging then proposed, related to those who were failed asylum seekers; that is to say, for those falling within section 4(2) and not 4(1) of the 1999 Act.
32. Mr Fortt pointed out that on the next page of the document, the consultees were asked whether other exemptions (in addition to those proposed) should be included in the forthcoming regulations; and that this would have alerted consultees to the opportunity to make an intelligent response concerning the cohort of people falling within section 4(1) of the 1999 Act.
33. That part of the consultation document and the asking of those questions was all set out under the heading of the third section of the document which was entitled: "Who should be charged?"
34. Mr Fortt submits that that was incontestably sufficient to comply with the obligation of fairness and that nothing, to borrow the words taken from Hickinbottom J's judgment in Sumpter (supra), had arguably gone "clearly and radically wrong".
35. Mr Fortt went on to point out that in December 2013, the government produced its written response to the consultation documents, just over a year before the laying of the Regulations before Parliament, and that passages within that response (specifically commenting on the consultees' responses to questions 13 and 14 to which I have already alluded) showed that they had been addressing themselves to the right questions.
36. Mr Fortt submitted that the answers to those questions had demonstrated that consultees had made wide-ranging and informed responses to the specific questions asked in the consultation exercise, within the overarching question of "who should be charged?"; and that it was therefore not arguable that the consultation process was infected with unfairness or unlawfulness.
37. It does seem to me from the submissions made by the parties, and after considering them carefully, that this is not a case where it could arguably be said that something had gone seriously wrong in the consultation process.
38. It does not seem to me that the requirements of legality and fairness to which I have referred, go anywhere near as far, in the factual context of this case including the background of the 2010 consultation exercise and the 2011 Regulations, as requiring the government to set out in a document the precise formaultion (or something closer to it) of what subsequently became the law in regulation 15.
39. The requirements of a fair consultation process preceding delegated legislation, need not in my judgment, and in this factual context, descend to that level of detail.
40. It was sufficient that the topic of charging was consulted upon properly; that the question of who should be charged was consulted upon; that in relation to proposed answers or possible answers to that question, the important group of failed asylum seekers was specifically identified as the subject of an intention that they should continue being exempt; but non-failed asylum seekers (who fall within section 4(1) of the 1999 Act), who were then exempt but no longer are, were not mentioned as being the subject of an intention that they should continue to be exempt.
41. It seems to me that Mr Armstrong's approach comes close to requiring something akin to a preliminary draft of the actual language to be provided in a consultation exercise, and that is too high a threshold. It does not seem to me arguable that there was any misleading in the materials to which the parties referred me and which constituted the consultation exercise. Essentially for the reasons advanced by Mr Fortt on behalf the Secretary of State, I am not of the view that the attack on the consultation exercise is arguable.
42. The second ground, that of insufficient inquiry in accordance with the well-known Tameside case relies on a similar point by Mr Armstrong, who submits that the Secretary of State made insufficient enquiry before enacting the Regulations, because he failed to ascertain which people are (or might be) within the cohort that was to remain exempt under section 4(2) of the 1999 Act, and those who are now eligible to be charged by having been removed from that exemption by the Regulations, because they fall within section 4(1) of the 1999 Act.
43. But it seems to me incontestable that the process that I have already outlined, even leaving out of account the subsequent equality analysis to which I am coming in a moment, was ample in its scope to meet the duty of sufficiency of enquiry and I do not think there is anything in this point either.
44. The third ground of proposed challenge is the alleged breach of the public sector equality duty. Mr Armstrong's main point is essentially the same point again; he submits that the government's written equality analysis ought to have identified the cohort of people thought to fall within the respective categories of those falling under section 4(1) and those falling under section 4(2) of the 1999 Act. He made a subsidiary point about maternity and pregnancy but I do not take the view that that added anything.
45. Mr Fortt took me through the equality analysis, which was carried out in February 2015. He reminded me that, as it states in terms, it built on the consultation process that already had been undertaken and also a further and earlier equality analysis which was not before the court; that it directly responded to the consultation exercise that had ended in December 2013; and that it did include reference to attempts to ascertain, and I quote from the equality analysis:

The impact and scale of the use and cost to the NHS by visitors and temporary migrants.

But it was noted that:

While there was a great deal of speculation and assumption about the numbers of visitors and short term migrants using the NHS, solid data was quite limited.

It then referred to other research that had been done to address the absence of "primary data."

46. So, Mr Fortt submitted, that was evidence of consideration of the impact on particular groups of people of the proposed regulations, but it was not necessary, he submitted, to go further than that and attempt some sort of detailed empirical research exercise to identify the relevant cohorts.
47. Once again, I accept the submission that the Secretary of State incontestably had due regard to the goals which are set out section 149 of the 2010 Act, just as I have accepted the submission that he consulted adequately before enacting the Regulations.
48. Even the claimant's witnesses, who were experts and professionals in this field, were unable to come up with more than a bald estimate of what was considered to be the number of people affected; which was estimated at about 1,000 people. That was not supported by any research; it was an estimate in one of the witness statements.
49. I have looked carefully at the written equality analysis of February 2015. I have noted that it addresses persons with the statutory protected characteristics and the impact on them; and that over and above those, it also addresses, towards the end, the category of "other identified groups" which includes the group "illegal migrants"; and that in addressing that group of people, the narrative and commentary within the equality analysis recognises that they may be unable to pay for health care when they require it and may have greater health care needs than most as a consequence of being in a lower socio-economic group, or not having good access to health care before travelling to the United Kingdom; and that adverse impact:

… will be exacerbated by the introduction of commercial charging as they will be liable to increased charges when they access NHS services.

50. I note also that in the following section, a couple of paragraphs further down, the equality analysis commentary states this:

The regulations attempt to strike a balance between ensuring the most vulnerable overseas visitors such as asylum seekers, refugees, supported failed asylum seekers, victims of human trafficking and unaccompanied children, including those in the United Kingdom illegally are able to access free NHS care with the principle that entitlement to free NHS care should be on the basis of ordinary residence which must be lawful.

51. The equality analysis then goes on to describe in detail the various organisations with which meetings and discussions were held and in the summary of the analysis at the end noted:

Any indirect discrimination that may arise from the application of provisions for charging under the regulations identified in this analysis is considered to be justifiable as a proportionate means of achieving a legitimate aim. … .

52. It seems to me that it is not arguable that the equality analysis, in the light of those passages to which Mr Fortt referred me, fell short of what was required under section 149 of the Equality Act 2010, and the obligation to have due regard to the legislative goals set out in that section.
53. Nor does it seem to me that the claimant's position is improved by making a further proposed challenge in reliance on article 14 on the European Convention Human on Rights.
54. Mr Fortt points ou,t in response to that ground of challenge, that illegal immigrants are among the other identified groups within the equality analysis, that the conclusion that any indirect discrimination is justifiable cannot be assailed and that it was not a necessary step on the way to reaching that conclusion, again, to analyse the precise composition of the cohort of those falling within the section 4(1) and those falling within section 4(2) of the 1999 Act; that to facilitate removal of illegal immigrants from the UK was a legitimate aim; and that it could not be said that the response in the Regulations was disproportionate to that aim; and that the same high threshold was not crossed in R (on the application of Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) at paragraph 92 in the judgment of Singh J, who referred to the high threshold and the test that "the measure must be manifestly without reasonable foundation".
55. It seems to me correct to submit, as Mr Fortt does, that it is not realistic to suppose that that high threshold could be crossed on an article 14 analysis in this case.
56. So, for those reasons, set out at rather greater length than usual, and at greater length certainly than when the matter came before the judge on the papers, I have come to the same conclusion as did Warby J, that the claims do not have arguable merit and I would refuse permission on that ground.
57. So far as the questions of standing or prematurity are concerned, and the question whether the claims are in any event academic, the Secretary of State submits that Mr Marfo (being both resident at the moment in Wales and a failed asylum seeker) is doubly unaffected by the Regulations. Mr Armstrong submits that the potential for being affected by them on the facts is enough, and he told me that Lang J at the permission stage in Cushnie (supra) rejected a similar argument from the Secretary of State.
58. It has emerged this morning that Mr Marfo's application for support under section 4(2) as a failed asylum seeker has been granted subject to conditions. That is a very recent development which has occurred in the last couple of days since the matter was before me last week.
59. In view of my conclusion that the claims are not arguable on their merits, it is unnecessary for me to go into detail on this front. It is sufficient to say that the circumstances in which Mr Marfo finds himself at present, are such that it is at best doubtful whether, if he had had an arguable case, he would have been in any position to obtain substantive relief in the exercise of the court's discretion; but because that has not arisen I need not determine that point finally.
60. I would not for my part have shut him out on standing grounds alone, although I think there is force in Mr Fortt's point that he enjoys the benefit of a right of appeal to an independent judge, should his section 4(2) support be withdrawn, that being the Secretary of State's alternative remedy argument rather than his standing argument.
61. I do not accept the point made by Mr Armstrong that a further challenge is likely if this one fails. It is far from clear that any such further challenge would now be regarded as being brought in time, even if brought by a body with standing, for example, an organisation wishing to mount a public interest challenge. The present challenges are not framed as public interest challenges. Neither claimant represents any organisation; each litigates on his own behalf.
62. As for Mr Ali, he is reluctant to pursue the avenue of asserting an exemption under regulation 16 of the Regulations, which I have not yet mentioned and which I do not need to consider in detail in view of my primary conclusion.
63. That regulation, broadly, creates an exemption which may or may not be time limited depending on the decision of a body called the Competent Authority, in the case of people who are able to establish that they are or may be victims of trafficking. That is a very broad and perhaps a little loose way of putting the effect of Regulation 16, but it is sufficient for present purposes.
64. It is said by the Secretary of State that Mr Ali has himself given evidence in his witness statement of facts which would, if correct, constitute a strong case for an exemption under regulation 16. Mr Armstrong submitted that Mr Ali should not be expected to advance that case because he wishes to return to Pakistan, but Pakistan will not accept him because Pakistan does not accept that he is properly documented and identified as a national of that country.
65. Mr Armstrong submitted that it would not be reasonable to expect Mr Ali to advance a claim to the effect that he was a victim of trafficking, which would no doubt further impede and block his wish to go to Pakistan.
66. In view of my primary conclusion, I do not propose to consider that point in detail but it does seem to me that on the evidence, the option of putting forward a case for exemption under regulation 16 is a powerful alternative remedy conferring the right to a considered decision of the Competent Authority which, if unlawful, can generate a right to seek a judicial review of it; and that that does seem to me, in the case of Mr Ali, to be a suitable alternative remedy.
67. I accept the Secretary of State's point that Mr Ali's remedy before the Competent Authority is not one that can be simply dismissed as having no prospect of success. I agree with Warby J that in the case of Mr Ali, he ought fairly to be expected to advance that remedy and I would have refused him permission on that ground as well.
68. It seems to me that since his own witness statement (and I refer, in particular, to paragraphs 3 and 4) supports the proposition that he is a victim of trafficking, it is disingenuous to come to court on the basis that the court should treat him as being something other than what he himself says he is, which is a victim of trafficking, and as such entitled to an exemption under regulation 16.
69. So for that additional reason in the case of Mr Ali, I would refuse permission and, in sum, for all those reasons I will refuse permission to both claimants.
70. I just wish to add by way of postscript that, while I do appreciate the workload that advocates find themselves subject to in cases of this kind, and the dedication with which they undertake that work for which I have nothing but admiration, the preparation for this hearing was made more difficult by the absence of an essential reading list; and worse, by the ticking of the box indicating that one had been or would be provided, for which no explanation was offered.
71. That did mean, unfortunately, that judicial time taken was looking for the non-existent list and then trying to work out what documents among the several ring binders lodged, might have been on it had it existed.