HIV-related legal issues affecting permission to stay in the UK

To the best of our knowledge, there are not any cases in the UK in which successful applications for asylum have been made on the basis that people living with HIV have a well-founded fear of persecution in their home country because of their HIV status. On the other hand, some campaigners who have risked imprisonment by campaigning against a government’s HIV policies have occasionally been granted asylum.

There have been some attempts, largely unsuccessful, to claim protection under Article 3 of the European Convention on Human Rights (ECHR) on the grounds that a person would be likely to die if they were removed to a country where HIV treatment would not be available for free and they could not afford to pay for treatment. 

A case brought before the European Court of Human Rights in 1997 considered whether it would breach human rights to remove a person who had AIDS from the UK.¹  D was a citizen of St Kitts whom the United Kingdom was proposing to return to his home country after serving a prison sentence for a drug-related offence. During the course of that sentence it was discovered that he was in an advanced stage of AIDS-related illness, and that his life expectancy was very short. The UK persisted with its plan to remove him so he appealed to the European Court.

The court found that his rights under Article 3 of the ECHR would be breached if he were removed to St Kitts from the UK. The court found that it would constitute “inhuman or degrading treatment or punishment” to withdraw from the individual concerned the medical treatment he was receiving in the United Kingdom and then force him to return to a country where no effective treatment or palliative care could be guaranteed, given that he was on the point of death.

However, successful challenges on these grounds have become much less likely following the judgment of a 2005 appeal to the House of Lords by N in 2005.

N was an HIV-positive Ugandan woman who claimed that she would not be able to obtain free effective treatment in Uganda, and that that it would be a breach of Article 3 of the ECHR if she were removed. The House of Lords decided that suffering due to a medical condition is different from suffering caused by torture or other some other serious mistreatment. In the medical case, if there are no other relevant factors to consider, it will only be in the most exceptional of circumstances, for example where death is imminent or where there is an absence of available treatment, that the removal will be prevented. The House of Lords dismissed the appeal despite agreeing that, if removed, the appellant would face “an early death after a period of acute physical and mental suffering”.

The N case was later considered by the Grand Chamber of the European Court of Human Rights which reached the same conclusion as the House of Lords and clarified the obligations on states contracted to the ECHR in cases where there are disparities in levels of medical treatment between countries.

The European Court's judgment includes two essential arguments. Firstly, that courts "need to retain a degree of flexibility to prevent expulsion in very exceptional cases," thus allowing individuals the opportunity to claim that their circumstances are exceptional.

Secondly, however, the Court found that Article 3 "does not place an obligation on the Contracting State to alleviate... disparities in (medical treatment) through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States. This means that even if an applicant has a poorer prognosis or life expectancy in the destination country, and that medical treatment is not affordable or easily available, or even as effective, these factors alone may not meet the high threshold required for Article 3 cases."²

What is important therefore is for the claimant to be able to show that the facts or circumstances of their case differ from those of N in a significant way. For example, they need to involve a special feature giving rise to compelling humanitarian considerations, which are truly exceptional or extreme, or the case needs to contain other factors giving rise to a human-rights or refugee claim.

Although this does not mean that people living with HIV cannot have good refugee or Article 3 claims, it does mean that the mere fact of living with HIV and its health consequences are very unlikely to establish a good claim for asylum (whether as a refugee or under Article 3). Particularly for those who have lived in the UK for some substantial period of time and/or who have family in the UK, other claims for permission to stay in the UK – such as under the long residence rules, through the asylum legacy programme or under Article 8 (the right to respect for private and family life) – have in the past provided better opportunities of success.³

As regards Article 8 (the right to respect for private and family life), in March 2012, the Court of Appeal had this to say:

“23. The only cases I can foresee where the absence of medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe...”⁴

As a result of the N case it is now very difficult for legal-aid solicitors to justify funding for an Article 3 claim for a person living with HIV. Such funding requires the expectation of a 50% or greater chance of success. In addition, since April 2013, all immigration cases (but not asylum cases) fall outside the remit of legal aid.

In the case of JA (Ivory Coast) & ES (Tanzania), the Court of Appeal considered the appeals of two people living with HIV who were receiving HIV treatment from the NHS. Unlike in the N (Uganda) case, the appellants in JA (Ivory Coast) & ES (Tanzania) had been granted permission to enter or stay in the UK because of their medical condition. This permission had been granted, under Home Office policy (that has since been withdrawn), before the House of Lords decision in the case of N. However, when they applied to extend their permission to stay in the UK, the Home Office refused.

The key issue for the Court of Appeal was whether it made any difference that the two appellants had previously been granted permission to enter or stay in the UK because of their medical condition. The Court of Appeal decided that this was an important difference between these cases and the N case. It was not necessary to demonstrate the most exceptional circumstances.

However, it did not necessarily follow that in all cases where permission to enter or stay in the UK had been granted under the previous policy, an application to extend permission to stay in the UK should be granted. The Court of Appeal decided that ES (Tanzania) would be able to obtain work in Tanzania and pay for continued medical treatment there. It was not disproportionate, therefore, for the Home Office to expect her to return to Tanzania. However, JA (Ivory Coast) was not in the same position. There was no reason to think that she could pay for, or otherwise obtain, treatment in the Ivory Coast, and it was disproportionate to expect her to return because of the suffering she would face (since she did not need to show the most exceptional circumstances).

The JA (Ivory Coast) & ES (Tanzania) cases provide two examples of where the very strict test in N (Uganda) may not apply. They are important in highlighting the need in the case of someone who is HIV positive to consider all the facts carefully to see whether there is some important point of difference between that person’s case and the case of N (Uganda).⁵