Individuals may sometimes be able to lodge successful applications for asylum on the basis that they have a “well-founded fear of persecution” on being returned to their home country because of their HIV status. This may be appropriate where you can demonstrate that people who are HIV positive or have AIDS are at risk of serious harm on account of this. The key legal issue relevant to this question is whether HIV status can be interpreted to define a “social group” for purposes of the 1951 Convention Relating to the Status of Refugees. It seems likely that people who are HIV-positive can be deemed to constitute a “social group” in light of the extremely important decision by the House of Lords in Shah and Islam [1999] 2 WLR 1015. That case related specifically to the issue of whether “women in Pakistan” constitute a social group but also separately addressed the issue of whether gay men and lesbians could do so (in both cases deciding affirmatively). It was held that the key factor in defining a “social group” should be an “unchangeable characteristic” and, in particular, stated that there should be no additional requirement of “cohesiveness, co-operation or inter dependence”.

To make a successful application on such a basis, asylum seekers would need to demonstrate the fact that individuals affected by HIV in their home country would indeed face persecution because of their status, either at the hands of their government directly or at the hands of other forces without the government providing adequate protection. A key to making such a successful application would be the collection of credible information confirming the existence of such persecution.

Other categories

Two other categories of immigration applications may be particularly affected by issues relating to HIV and AIDS:

• Carers
• Unmarried partners

Carers

A new policy was announced in August 1998 outside of the immigration Rules, relating to “carers”. This policy permits “applications from persons here in a temporary capacity seeking leave to remain to care for a sick relative or friend who is suffering from a terminal illness such as cancer or AIDS” (Immigration Directorate’s instructions, Chapter 17, S2).

The “carer” category is meant to be a temporary arrangement but, in practice, it is often extended. Applications made to remain as a carer of a “relative” as opposed to a “friend” are treated differently. Applications to care for a “friend” are meant, in principle, normally to be refused.

Such applications should be supported by a letter from a registered medical practitioner, a letter from the local social services department, if involved, evidence that alternative arrangements are being explored and full details of the patient’s family in the United Kingdom and previous care arrangements, as well as evidence of the applicant’s circumstances, both in his or her home country and in the United Kingdom. Where compelling and compassionate circumstances exist, the Home Office is often prepared to exhibit flexibility.

Unmarried partners and civil partnerships

Since 2 October 2000, provisions have existed in the Immigration Rules (rule 295) relating to the admission of a foreign common law or gay/lesbian partner of a UK based person, where the couple concerned can demonstrate a relationship “akin to marriage” which has subsisted for at least two years. The Rule applies to both same sex couples and to heterosexual unmarried partners . The foreign partner may be seeking to join or remain with the British Citizen, an EEA National residing in the United Kingdom or any other person who has indefinite leave to remain in the United Kingdom or who falls into one of a number of categories of limited leave to remain which lead to indefinite leave. The couple should be able to demonstrate an ability to support and accommodate themselves without relying on public funds.

The Home Office has in the past been prepared to exhibit flexibility in applying the requirements of these arrangements in those cases where one or both members of the couple are affected by HIV. If, for example, recourse to public funds is necessary because of HIV-related illness, the Home Office may be prepared to exercise discretion outside the letter of the Rules.

From 5 December 2005, gay men and lesbians will be able to register their civil partnerships under the provisions of the Civil Partnership Act. The Home Office has said that it will amend the Immigration Rules to afford foreign civil partners the same rights as foreign spouses. This will afford another possibility for a foreign national in such a partnership to seek leave to enter or remain in the United Kingdom. While, again, the couple should be able to demonstrate an ability to support and accommodate themselves without relying on public funds, it is hoped that discretion will be exercised in compassionate cases.

Advice on other aspects of immigration and asylum law

As set out at the beginning of this section, it is essential that anyone seeking information on this subject go to the most up–to–date sources of advice and information. The following organisations can provide appropriate guidance. 

Specific Immigration Advice Organisations

Joint Council for the Welfare of Immigrants (JCWI)

115 Old St, London EC1V 9JR

020 7434 3690 (advice line)

Refugee Legal Centre

Nelson House 153-157 Commercial Road, London, E1 2EB

020 7780 3200

Immigration Law Practitioners Association (ILPA)

Lindsey House, 40/42 Charterhouse Street, London EC1 6JN

020 7251 8383

ILPA is a consortium of immigration law specialists who can advise as to the whereabouts of specialist lawyers by region.

The Terrence Higgins Trust Advice Centre offers specialist immigration advice to people affected by HIV or AIDS. 

020 7816 4605