Failed asylum seekers are not entitled to free treatment on the NHS, three judges at the Court of Appeal ruled today.

But hospitals can make up their own minds on whether to treat them if they have no money, said the judges.

They were dealing with a test case which will affect "a large number" of people seeking medical help for serious illnesses.

Lord Justice Ward said: "Because most of those who suffer are invariably penniless and destitute and quite unable to pay for the treatment they need, their predicament has become a legitimate cause of widespread concern."

He said to receive free health service treatment, the patient must have resided lawfully in the UK for at least a year.

Although the Palestinian asylum seeker identified as YA was in the UK for the specified period, he was not ordinarily resident because he was under investigation over his asylum claim, the judges ruled.

Lord Justice Ward said: "Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return. In some cases, like the unfortunate YA, that return may be a long way off."

He added: "The result may be most unfortunate for those in ill-health like YA for they may now be at the mercy of the hospitals' discretion whether to treat them or not."

YA is 35 and became involved with Hamas, fleeing in 2002 after being asked to take part in a political assassination.

He claimed asylum in the UK in 2005, but was later refused leave to enter and his appeal against that decision refused by a judge who said that his main reason for coming to Britain was not a fear of Hamas but a desire to receive medical treatment.

When his liver condition worsened, he was admitted to hospital but free treatment was refused and he was presented with a bill for £9,000 which he cannot pay.

"One can easily imagine how distressing this must have  been," said Lord Justice Ward.

YA took his case to the High Court where a judge declared Government guidance over treatment unlawful so far as it advised NHS Trusts to charge failed asylum seekers.

The hospital has now agreed to treat him but the issue went to the Court of Appeal to decide on the issue of the Government guidance.

Lord Justice Ward said: "All agreed it was fit and proper for this matter to be considered by the court because, as the evidence shows, there are a large number of failed asylum seekers, many unable to return home, who suffer severe medical problems, such as cancer and HIV, which, whilst perhaps not all life-threatening conditions, are, nonetheless, conditions which need urgent healthcare."

The appeal judges ruled that a failed asylum seeker is not ordinarily resident in the UK and allowed the appeal by the Secretary of State for Health.

They also ruled that hospitals do have the discretion to provide free treatment to penniless failed asylum seekers.

Lord Justice Ward said Government guidance for chargeable patients was to seek a deposit for the full cost of the treatment but was silent on what happens when that was not possible.

"No help is given in the case of those who cannot return home before the treatment does become necessary. What is to happen to the patient who cannot wait?"

"My conclusion is that it is implicit in the guidance that there is a discretion to withhold treatment but there is also discretion to allow treatment to be given when there is no prospect of paying for it."

On that finding, Donna Covey, Chief Executive of the Refugee Council,
commented: "It cannot be right to deny vulnerable asylum seekers life-saving treatment simply because they are unable to pay for it, and we hope that this ruling will offer extra protection to those who are very sick and vulnerable.

"However, we remain concerned that a charging regime for refused asylum seekers still exists at all.  Almost all asylum seekers arrive in the UK with nothing, and a great many of those who are refused but who can't go home straight away end up homeless and destitute.

"To refuse treatment to those people simply because they cannot pay for it is appalling and inhumane.

"The Government has been due to publish a review to the charging regulations for some time.  We urge them to reconsider the rules in light of the judgment and all the other evidence of the inhumanity of the charging regime and let asylum seekers access treatment at least until they are able to go home."

Deborah Jack, chief executive of the National Aids Trust, said: "We are very disappointed by the decision of the Court of Appeal. There are probably hundreds of thousands of people living in the UK who are unable to access affordable healthcare.

"This undermines social cohesion, increases avoidable illness and death, harms vulnerable children and older people, and contributes to the spread of infectious disease.

"In the short term, much stronger guidance on access to healthcare and debt write-off will be welcome.  But the fear of bills will continue to deter many people from accessing the care they need, including people who are in fact entitled to free treatment.

"The Government must use its current review of healthcare charges to end its policy of enforced ill-health for the most destitute in our society.
 This policy has no impact on immigration controls. It simply harms our public health and our claim to be a decent society."

Secretary of State Alan Johnson said: "We are pleased with the Court of Appeal's judgment that failed asylum seekers cannot acquire ordinary residence status, which could entitle them to a wider range of public service benefits in the same way as those people who live lawfully in the UK on a settled basis.

"However, we will continue to address the issue of failed asylum seekers' access to healthcare jointly with the Home Office as part of our current review of access to the NHS by foreign nationals.

"We note the court's finding that our guidance document (Implementing the Overseas Visitors Hospital Charging Regulations) is unlawful in being unclear as to when treatment should be given in circumstances where a person cannot pay or is unlikely to leave the country.

"We fully accept the court's decision and comment and will ensure that the guidance is amended and brought to the immediate attention of those who operate the charging regime in hospitals."