Asylum and Immigration Implications for HIV/AIDS Diagnosis

HIV is one of the most dangerous infections which can lead to full blown AIDS, a life threatening disease. The World Health Organisation reported that over 39.4 million people worldwide were living with HIV/ AIDS by the end of 2004 with over 50% of this population living in developing countries in Africa, East Asia and South Asia.

Medical Implications and Treatment

The HIV virus inserts its own genetic material into that of the cells of the host especially CD4 cells. Millions of virus particles can be produced and destroy the CD4 cells which are a crucial part of the body’s immune defence system. Not all people who are HIV positive have AIDS. A full blown infection of HIV with the appearance of symptomatic infections is classified as AIDS.

There is no cure for people infected with HIV/AIDS. However, anti-retroviral treatment/combination therapy can improve the prognosis of the patient not only in terms of longer life but a life free of complications. A viral load test confirms the activity of reproduction of the HIV virus and provides an indication of the progression of the disease. Treatment is started when the viral loads are high with a combination of three to four drugs. The viral load test is then repeated and regularly monitored and drug therapy may be changed if the viral loads have not reduced.

The administration of anti-retroviral drugs is not free from complications and a common complaint is the development of resistance to the drugs. Some medications also have potentially fatal side affects. It is therefore essential that the patient is monitored closely. Appropriate anti-retroviral therapy involves a combination of drugs and the ability to change these combinations in view of the above noted problems. Hence a full range of drugs must be available and not only one or two in the main groups and patients must be able to obtain a regular supply of drugs.

The developing countries do not have a medical budget sufficient to fund anti-retroviral therapy for their population. Most patients are not able to afford medication and the facilities to monitor viral loads are scarcely available. There is also a real risk of patients taking reduced level of drugs because of the cost implications and expensive treatment.

Consequences to Asylum Claim/Informing Immigration

What are the implications for people who have been diagnosed as HIV positive on their asylum claim/right to remain in the UK?

As HIV is not curable, it is a status that cannot be changed and may form the basis of an asylum claim as members of a particular social group.

The leading judgement of Shah and Islam (R v IAT & SSHD ex parte Shah; Islam v IAT [1999] 2AC 629), the House of Lords decided that a person is a member of a particular social group (PSG) if he is:

'a member of a group of persons all of whom share a common, immutable characteristic'.

The House of Lords approved the definition of an 'immutable characteristic' as:

'CA characteristic that is either beyond the power of the individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed'

However, the difficulty lies in proving that the person will suffer persecution in their country of origin as part of a PSG and it is therefore not an effective remedy in the grant of refugee status.

Asylum seekers who have been diagnosed as HIV positive may however submit representations that their removal from the UK would be a breach of their human rights as protected by the Human Rights Act 1998 which is incorporated with the European Convention of Human Rights (ECHR).

Article 3 of the ECHR states:

'no one shall be subjected to torture or to inhuman or degrading treatment or punishment'

It can be a breach of Article 3 to remove someone from the UK if as a result of their removal they will be subject to inhuman or degrading treatment as a result of suffering arising from their medical condition. This could apply if the return to the country of origin is life threatening because of health services and resource problems noted above.

For asylum applicants representations regarding the person’s HIV status can be made at the outset in the Statement of Evidence Form (link to SEF in Asylum Procedure) or in the Statement of Additional Grounds (link to One Stop Notice and Statement of Additional Grounds in Asylum Procedure). If the diagnosis is made at a later stage representations may still be submitted to the Immigration and Nationality Directorate.

The evidence to be submitted confirming the status should be in the form of a medical report from their GP or consultant confirming the following:

When the applicant was diagnosed HIV positive.
The applicant’s current diagnosis.
The current viral load and CD4 count.
The lowest figure the CD4 count has reached and the highest figure the viral load has reached (this information assists in establishing the severity of the disease).
A note of any symptomatic infections (this information assists in establishing the severity of the disease).
A note of current medication and in particular any specific reference to combination of medications.
A note of the Applicant’s life expectancy - specific reference should be made if the life expectancy will be less than a year (with or without treatment).
A statement on whether the medical treatment the applicant is receiving is increasing their life expectancy.
The consequences if the treatment were to be discontinued if the applicant is required to return to their country of origin.
Any specific affect on the applicants psychological state/mental health.
The length of time the applicant has been receiving care in the UK and whether in the medical practitioner’s view point the UK has assumed responsibility for the applicants care.

It is also advisable to obtain information in relation to the availability of treatment in the applicant’s country of origin. Useful sources of information to obtain country specific information on the availability of medical treatment are the World Health Organisation (WHO) http://www.who.int/en . The Terrence Higgins Trust is a national voluntary organisation leading the fight against AIDS and can provide country specific bundles particularly addressing HIV/AIDS and the availability of treatment and conditions in the country. http://www.tht.org.uk/

Considerations by the Home Office

The Home Office policy to grant leave to remain in the UK on medical grounds is considered under the grant of ‘discretionary leave’. The threshold however in such cases is extremely high and will only be reached in the most exceptional and extreme circumstances. The fact that a person is suffering from a distressing medical condition which involves a limited life expectancy is not sufficient to meet the threshold.

The Domestic and Strasbourg Courts have concluded that a person who is subject to removal cannot lay a claim to remain in the Contracting State in order to continue receiving medical, social or other forms of assistance. The Court of Appeal has concluded that where similar treatment may not be available to a person in their country of origin because of cost implications does not necessarily amount to inhuman or degrading treatment. The Courts concluded that the circumstances would have to be extreme to warrant a grant of leave to remain in the UK.

The factors that may be taken as exceptional in a successful Article 3 claim include the following:

If the claimant is in the terminal stages of illness and has a short life expectancy even with treatment.
If the removal of the patient would both significantly shorten their life expectancy and result in acute mental or physical suffering (however, this factor may not on its own warrant an Article 3 claim).
If the claimant has been receiving treatment for the relevant condition in the UK for a long time (i.e. more than 4 years) and has become dependent on the treatment he or she is receiving to sustain life even for a short period.

An example of extreme circumstances were found in the case of D v UK (1997) 24 EHRR 423. D was dying of AIDS and there was a complete absence of treatment, facilities or social support in his home country of St Kitts. D had been receiving treatment and counselling in the UK for four years. He had no family to return to in his home country and had formed a relationship with his carers in the UK. It was found that his removal would result in an imminent/lingering death and would cause acute mental and physical suffering.

On the other hand the Court of Appeal in the judgement of N v SSHD [2003] held that the case of D should be strictly confined and that even if the applicant has received treatment in the UK for a long time, a lower standard of treatment in the home country would only breach Article 3 if there were very strong compassionate circumstances. N was from Uganda and was HIV positive on arrival in the UK some four years back. N was very ill with AIDS related illness including a form of cancer. Her condition had however stabilised as a result of anti-retroviral treatment. Her life expectancy in the UK was around 10 years but only 2 if returned to Uganda. The Court found that these circumstances did not make removal a breach of Article 3.

N appealed to the House of Lords [2005] UKHL 31. Their Lordships concluded that removal of N back to Uganda where there would be difficulty in practically obtaining suitable medical treatment which would result in a drastically reduced life expectancy was not exceptional enough to reach the very high threshold required to establish a breach of Article 3 of the convention. The Lords expressed their sympathy with N, however, they referred to a number of Strasbourg decisions in support of their conclusion that Article 3 could not be used to protect all those suffering from AIDS related illness who managed to make their way to the UK.

Factors that will therefore not generally demonstrate exceptional circumstances such as those described above include the following:

If the claimant is unlikely to receive treatment or the treatment is less effective than that which is being administered in the UK.
If the claimant cannot afford the treatment.
If the claimant has no family in the country of origin.

Article 8

A breach of Article 8 of the Human Rights Act may also be argued in medical cases such as HIV/AIDs. Article 8 (1) states:

'Everyone has the right to respect for his private and family life, his home and his correspondence'

The right to respect for private life includes a person’s physical and moral integrity. Article 8 unlike article 3 is subject to proportionality and allows the State to interfere with that right only in accordance with the law and as necessary in a democratic society. The threshold for medical based Article 8 claims is regarded the same as for Article 3 described above.

Issues Concerning Children

Children included as dependents on a medically based claim by an adult raising medical issued under Article 3 and 8 would be granted the same decision as the adult. However, the Home Office policy states that consideration to grant ‘discretionary leave’ should be taken if:

If as a result of the principal applicant’s reduced life expectancy, the child is likely to be orphaned in the near future and there are no close relative in the country of origin who could care for the child.
In the case of families whose children were either born in the UK and have reached the age of 7 or over or who have come to the UK at an early age and have spent 7 or more continuous years of their life here.

In the case of CA v Secretary of State for the Home Department [2004] EWCA Civ 1165 the consequences of removal on the appellant’s child and the appellant were found enough to establish a breach of Article 3. The Appellant was HIV positive and the adjudicator found that she would not necessarily lack the requisite treatment on return to Ghana. However, her baby, who at the time of the hearing had not yet been born, would have little chance of staying well as s/he could not be breastfed, and dried formula milk would be mixed with unsafe water. There was a reasonable likelihood that the baby would die; therefore, it was a breach of Article 3 to return the mother. The Court of Appeal held that the adjudicator’s decision was not perverse or inconsistent with N. Laws LJ, giving the leading judgment, said ‘It seems to me obvious simply as a matter of common humanity that for a mother to witness the collapse of her new-born child’s health and perhaps its death may be a kind of suffering far greater than might arise by the mother’s confronting the self-same fate herself.

Unaccompanied Asylum Seeking Children (UASC)

Unaccompanied asylum seeking children suffering from a serious medical condition such as HIV/AIDS should be granted discretionary leave and Article 3 policy should be applied more leniently or under the UASC (Unaccompanied Asylum Seeking Children) policy. For further details, read the Home Office policy on applications from unaccompanied asylum seeking children.

Successful Article 3/8 Claims

Discretionary leave will be granted for a period of 3 years to applications successful in their Article 3/8 claim. An application for a further extension will be carefully reviewed based on the applicant’s circumstances. Applicants can apply for settlement in the UK after having held discretionary leave for six years. See Forms of Leave to Remain in the UK section.