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 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 isan 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

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. However, this does not mean that no cases involving HIV in an Article 3 claim can get funding or succeed.

What is important 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.