and marginalised sections of the population.315 It must be economically accessible, that is to
say affordable for all, with “a special obligation to provide those who do not have sufficient
means with the necessary health insurance and health care facilities”.316 It must also be of
good quality.317 Emergency healthcare, essential primary healthcare and non-discrimination in
the provision of healthcare are identified as core entitlements that States must meet.318
Several participants interviewed revealed a range of health issues including a bowel
condition,319 mental health problems and epilepsy,320 mental health problems and alcohol/
drug dependency,321 a kidney condition,322 lymphatic cancer,323 Hepatitis B,324 Hepatitis C,325
and chronic asthma and dental problems.326 However, except for one case of denied access to
(non critical) dental treatment327 no participants were refused access to healthcare or required
to pay for treatment before receiving it.
However, the research identified other evidence that stateless persons were not always able to
access healthcare as a result of previous Regulations and Department of Health Guidance.328
The legality of this guidance was challenged in a case brought by a stateless Palestinian who
had claimed asylum when he arrived in the UK.329 His asylum claim had failed, but he could
not leave the UK. He required treatment for lymphatic cancer, which was deemed “urgent” but
not “immediately necessary” secondary healthcare. The hospital required him to pay a charge
before he would be treated, on the basis that he had been neither “ordinarily resident” nor had
been “lawfully present” for 12 months. The Court of Appeal held that, although the hospital
was correct in its application of the Regulation and the Guidance, it maintained a discretion
to treat the applicant. The Court held that the Guidance ought to be reviewed to consider the
“plight of those who cannot be returned” and those for whom there is no prospect of paying
for the treatment.
Since the Court of Appeal’s judgment, new Regulations and Guidance have been brought
into force.330 As before, if the person in need of treatment is not “ordinarily resident” he or she
may be charged for it. Specific sorts of treatment, such as accident and emergency services,
family planning or treatment for specific diseases which is necessary to protect public health,
cannot be charged for.331 Importantly, these now provide that charges should not be applied
to failed asylum-seekers who are in receipt of section 4 support, on the premise that “[s]ection
4 support is given to those failed asylum-seekers taking reasonable efforts to leave the UK but
for whom there are genuine recognised barriers to their return home”.332
The new Regulations and Guidance do not expressly cover the situation of the stateless
because, first of all, not all stateless persons in the UK claim asylum and, secondly, evidence
315
In accordance with ICESCR Articles 2(2)
and 3 in particular and other prohibitions on
discrimination discussed in Chapter 5.
316
CESCR General Comment No. 14, para. 18.
317
Ibid., para. 12.
318
Ibid., para. 48.
319
Participant 3.
320
Participant 4.
321
Participant 1.
322
Participant 10.
323
Participant 19.
324
Participant 21.
325
Participant 36.
326
Participant 27.
327
Participant 27.
328
National Health Service (Charges to Overseas
Visitors) Regulations 1989 (SI 1989 No. 306 as
amended) and the guidance to the NHS Trust
Hospitals in England given by the Secretary of
State for Health.
329
R (YA) v Secretary of State for Health [2009]
EWCA Civ 225.
330
See The National Health Services (Charges to
Overseas Visitors) Regulations 2011 No 1556
and Guidance on Implementing the Overseas
Visitors Hospitals Charging Regulations 2011.
331
See Guidance on Implementing the Overseas
Visitors Hospitals Charging Regulations 2011,
section 3.26.
332
Ibid., section 3.63.
in the United Kingdom
103
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