Immigration and asylum

This chapter presents an overview of the main features of immigration and asylum law which are likely to affect people living with HIV in the UK who are recent migrants, whose immigration status is uncertain, or who have conditions attached to their leave to remain, particularly with regard to their, or their dependants', rights to access public funds.

Its aim is to help generalist advisers identify situations in which they should seek specialist advice. This is particularly important in relation to immigration because a person's immigration status can affect almost every aspect of their lives, including access to health care, whether they can work or claim benefits, whether they can stay in the UK, and what happens to them when they are here.

The immigration rules in the UK are incredibly complex and liable to frequent change, and it is an offence for people without registration or exemption from the Office of the Immigration Services Commissioner (OISC) to give immigration advice.

However, because of the complexity of the rules, and the existence of a great deal of case law which addresses particular details of the rules, it is helpful for advisers to be familiar with the ways in which the rules and related procedures may affect different categories of migrants. In the case of people living with HIV, it is important to know the entitlements of different categories of migrants to HIV treatment and welfare provision, and the guidance and rules governing procedures involved in processing a person's asylum claim in relation to the care and treatment of people living with HIV.

The chapter deals with the UK as a whole, because immigration legislation is uniform for the whole UK. However, there are some regional variations in the implementation of immigration-related policy, for example the Welsh Assembly exempts refused (failed) asylum seekers from charges for non-HIV hospital treatment which are payable by them in England.1 (We use the term 'refused' rather than 'failed' asylum seeker in this chapter to refer to people whose asylum application has been rejected, unless citing government documents which use the term 'failed'.)

The remainder of the chapter consists of a brief outline of immigration and related welfare legislation since 1990, followed by a description of how different people are affected by immigration control, and the different kinds of leave that can be obtained. Asylum is discussed separately because it involves the most complex pathway through the immigration system. Procedures relating to asylum, such as detention and removal, also overlap with the enforcement measures and procedures implemented by the UK Border Agency against other migrants who are in breach of their conditions of entry to the UK.

Why is immigration important for people living with HIV?

Migrants are an important group among both diagnosed and undiagnosed people living with HIV. Nearly half the people with diagnosed HIV in the UK are from black and minority ethnic backgrounds, and three-quarters of these are Black African. Migrants may be at greater risk of HIV infection than the British born, because they come from high HIV prevalence regions such as sub-Saharan Africa.

Infections acquired through heterosexual contact accounted for 2990 (48%) of new diagnoses in 2011. 57% of heterosexuals diagnosed in 2011 were black African and 4% were black Caribbean.2

Migrants often have other needs stemming from untreated health conditions in their countries of origin, as well as from the effects of poverty, poor housing and insecurity which they face on arrival in the UK. Many have unresolved immigration problems which adversely affect their physical and mental health, regardless of their HIV status. Asylum seekers and irregular or undocumented migrants, especially, are at particular risk of ill health because of their living and/or work conditions, and the difficulties they face in accessing health care or public-health initiatives.3

At the same time, access to health care and other social benefits have been incorporated into government strategies of immigration control, making access more difficult for all foreigners. Because of the complexity of both the immigration rules (giving rise to a myriad of different immigration statuses and rights) and the rules of NHS entitlements (which carry many exceptions), often neither providers nor migrants themselves are clear as to what their entitlements are.

As a result, refused asylum seekers and other undocumented migrants often avoid seeking treatment, or attend late because of a fear of being charged amounts they could not pay, or of being reported to the immigration authorities, whether or not such fears are justified. For example, pregnant women without leave to remain frequently present late to maternity services.4

All these and other factors make it crucial to know a migrant's immigration status in order to be able to judge his or her entitlement to a wide range of services, and advice needs to be obtained from a suitably qualified and accredited immigration lawyer or caseworker.

Changes to legal aid in recent years have significantly reduced the availability of such advice; many legal firms have closed their immigration departments because the amount of work involved in representing complex cases is excessive by comparison with legal-aid payments. Many migrants have paid large sums of money to immigration lawyers who know a case has no legal merit or who are unwilling to pursue all avenues in a case.

Different financial-support options and rights to work for the individual concerned, and his or her dependants, flow from a migrant's immigration status. For example asylum seekers, students, workers, people from the European Economic Area (the European Union plus some other countries) all have different entitlements for themselves and for their dependants. It is important to note the restrictions on entitlements for dependants, which have a significant impact on the welfare of children.

References

  1. Welsh Assembly Government Amendments to NHS (Charges to Overseas Visitors) Regulations 1989 - Failed Asylum Seeker www.wales.gov.uk/publications/accessinfo/drnewhomepage/healthdrs/Healthdrs2008/amendoverseasvisirorchargesregs/?lang=en, (date accessed: 18 March 2010), 1998
  2. Health Protection Agency HIV in the United Kingdom: 2012 Report. See http://www.hpa.org.uk/webc/hpawebfile/hpaweb_c/1317137200016 (date accessed: 1 July 2013), 2012
  3. Health Protection Agency Migrant Health www.hpa.org.uk/web/HPAweb&HPAwebStandard/HPAweb_C/1201767921328, (date accessed: 1 July 2013), 2006
  4. Greater London Authority Policy Briefing on Maternity Services for Refugee and Migrant Populations. http://www.london.gov.uk/sites/default/files/Maternity%20Services%20for%20Refugee%20and%20Migrant%20Populations.rtf (date accessed: 1 July 2013), 2012

Acknowledgements

Written by: Rayah Feldman, chair of Hackney Migrant Centre, freelance researcher and visiting fellow at London South Bank University. Updated in 2013 by: Natasha Tsangarides, Medical Justice.

With thanks to: Kathy Meade (Tower Hamlets Law Centre), Maggie Crowley (Hackney Community Law Centre), Solange Valdez (Southwark Law Centre), Joe Murray (NAT), Sarah Radcliffe (NAT), Sue Lukes (MigrationWork), Memory Sachikonye (UK-CAB), Adam Hundt (Pierce Glynn), Daniel Payet (Terrence Higgins Trust), Julia Irving (Norfolk County Council), Wendy Pettifer (Hackney Community Law Centre), Jane Anderson (Homerton University Hospital).

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.