Using the word "immigrant" can justify treating an assault as racially aggravated, the Court of Appeal ruled yesterday.

The court decided that a judge should not have thrown out a charge of racially aggravated assault against a woman who attacked a GP after referring to him as "an immigrant doctor".

Under the Crime and Disorder Act 1998, an offence is racially aggravated if the offender demonstrates hostility based on the victim's membership of a racial group. Judge Breen decided at Luton Crown Court in January that the word "immigrant" did not meet this definition. But three appeal judges said yesterday he should have left the matter to the jury. The case was referred to the Court of Appeal on a point of law by the Attorney General.

The court heard that the defendant, Mrs D, took her three-year-old son to a surgery because he had a rash. Dr Hair Newal said she should come back if the symptoms developed. When Mrs D demanded a diagnosis, he suggested she find another doctor.

She replied: "I can't find another doctor. All the good doctors are taken up by asylum seekers and I am left with an immigrant doctor."

She then tried to grab her son's medical records. In the struggle, Dr Newal received scratches to his head.