No unlawful discrimination against late beneficiaries of the Withdrawal Agreement

The Administrative Court has handed down judgment in R (BHO) v Secretary of State for Health and Social Care and the Secretary of State for the Home Department. 

The case concerns the question of whether it is consistent with the UK-EU Withdrawal Agreement to levy NHS charges on so-called Late Beneficiaries of the Withdrawal Agreement. For most applicants to the EU Settlement Scheme, the deadline was 30 June 2021. However, under Article 18(1)(d), the UK is obliged to accept late applications where there is good reason for the delay. A Late Beneficiary is a person who makes a late, but successful application to the EUSS.

The crux of this case is whether it is contrary to the WA to levy charges on a Late Beneficiary for NHS case they received between the expiry of the deadline for applications to the EUSS – 30 June 2021 – and the date of their application to the EUSS.

The Administrative Court determined that the recovery of NHS charges from Late Beneficiaries is lawful:

• Ground 1: the grant of status to a Late Beneficiary does not have retroactive (ex tunc) effect and so does not render a period of residence prior to the Late Beneficiary’s application to the EUSS lawful.
• Ground 2: charging Late Beneficiaries for NHS care discriminates against them within the meaning of Article 23 WA, but the discrimination is justified in order to protect the integrity of the EU Settlement Scheme. The Court dismissed the remainder of the proposed justifications offered by the Secretary of State.

The IMA intervened in relation to Ground 2. The IMA is the post-Brexit citizens’ rights watchdog, established in accordance with the WA to monitor and protect the rights of EU citizens and EEA EFTA nationals and their family members in the UK.

Clíodhna Kelleher acted for the IMA.