African communities residing in the UK and HIV
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The relatively rapid rise in HIV infections in the UK comes at a time when the Government is under increasing public pressure to reduce the number of asylum seekers and migrants coming into the country, on the grounds that they are overburdening the education, health and social welfare infrastructure.

What is a refugee?

  • An asylum seeker is someone who has submitted a claim for asylum and is awaiting a decision from the home office.
  • A refugee is someone who has been accepted to stay in the UK under the Geneva Convention and given leave to remain in the UK for four years. After that period an individual can apply for settled status. They can also request reunion with a spouse and any children less than 18 years of age. Under the terms of the 1951 Geneva Convention, a refugee is defined as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to return to it."
  • Someone who is given indefinite leave to remain in the UK is given permanent residence in Britain indefinitely. Family reunion is only permitted if the individual is able to support their family and will not rely on public funding to do so.

The belief that most asylum seekers come to Britain for welfare benefits is at odds with the fact that many are highly skilled and previously enjoyed a high standard of living. Many pay the equivalent of several thousand pounds to a trafficker to reach a place of potential asylum. The skills of health professionals, teachers, and other workers could benefit Britain, but it is difficult for their experience and qualifications to be recognised. Much social research has shown that black African people are among the most highly educated social groups in the UK.

Some Africans moved to the UK for the purpose of career development or study, and many others have done so as a result of persecution, illness, civil conflict, insecurity, genocide and poverty. So for many there is no real option to return ‘home’ and most describe their existence in the UK as one of necessity rather than choice.

There is evidence of fear that an HIV-positive status would be detrimental to asylum application. A particularly vulnerable migrant group affected by HIV are those who have been forced to leave their country of origin. According to the British Medical Association, ‘Healthcare for asylum seekers in Britain is patchy, belated and often inappropriate’. There are problems with access to healthcare, including difficulty in finding a GP, problems related to not speaking English, lack of cultural sensitivity, high levels of mental health difficulties, and disrupted social support. More specifically, asylum seekers may have witnessed or experienced physical and/or sexual violence. As such many Africans may find it difficult to establish working relationships with service providers, as their belief in the world as a safe place has been shattered and trusting relationships are therefore very difficult to form. Adherence to treatment may thus be threatened.

Immigration policy and HIV

Although the National Strategy for HIV and Sexual Health and HIV (NSSHH) identifies asylum seekers as ‘a group at special risk’ in need of information and advice on sexual health, at a broad level asylum seekers face a number of barriers when accessing health care. Difficulties in accessing healthcare attributable to asylum seeker status are in part related to the regulations imposed under Section 55 of the Immigration and Asylum Act enforced as from 8 January 2003. This Section denies the right to claim asylum to individuals who do not apply ‘as soon as is practicably possible’ – a regulation which has the potential to leave asylum seekers destitute, which is a particularly dangerous position for those who are HIV-positive. All those who manage to claim asylum within the stated time are transferred to ‘induction centres’ for up to a week. From these centres, which are under the management of the National Asylum Support Service (NASS), they are sent to either a known address or to detention centres, whilst their claims are processed.

The government has announced a reversal of its policy of denying asylum seekers practical support unless they make their claim as 'soon as is reasonably practicable'. The decision comes after the government lost its appeal against High Court rulings in the cases of three asylum seekers in May 2004. The appellants argued that Section 55 breached asylum seekers human rights. The Government is currently considering an appeal to the House of Lords.

Detention

The British Medical Association expressed concerns that conditions in detention centres were inappropriate for the long-term health needs of asylum seekers and refugees. The All-Party Parliamentary Group on AIDS (APPGA) received evidence that conditions inside NASS-run centres were inappropriate for those living with HIV. There were no specialist HIV services. Detention could actively prevent individuals from adhering to their HAART regimes. For instance, some antiretroviral drugs should be taken with food, but administration of drugs in detention centres was not necessarily in conjunction with meals, so individuals were prevented from adhering to their HAART regimes. They had little privacy for storing and taking complex medication, and levels of financial support could prevent the purchase of appropriate healthy food or transport to HIV treatment and care clinics. The APPG recommended that ‘the government should not place individuals with HIV in detention or removal centres for immigration purposes, where it is not possible to provide suitable medical care. Detention can undermine efforts to maintain good health’.

Dispersal program

A HIV-positive asylum seeker faces further barriers to receiving appropriate health care as a result of the Home Office policy of dispersal, introduced in April 2000.

Asylum seekers may be dispersed to parts of the country with a low prevalence (from London and southeast England to locations around the United Kingdom) of HIV, little experience of managing HIV infection, a lack of infrastructure, and no appropriate community-based support services in place. More than 100,000 asylum seekers to date have been dispersed, many of whom are from regions with HIV epidemics. It is not known how many HIV-positive seekers have been affected by this policy. Asylum seekers may receive only 48 hours notice, and they face immediate cessation of income, housing and legal benefits if they decline dispersal or return to London.

Of the potential barriers to safe dispersal of HIV-infected asylum seekers, it is of particular concern that dispersal is done at short notice and frequently without appropriate transfer of medical information. Inappropriate dispersal of an HIV-infected patient could lead to HIV drug resistance, onward transmission of HIV infection and avoidable morbidity and mortality for the asylum seeker.

Leave to remain and HIV

The fact that someone is HIV-positive or has AIDS is not in itself a basis for refusing that application. A person is entitled to apply for leave to remain on grounds unrelated to their HIV-positive status. However, there may be cases where a person has no other grounds to remain in the UK, but wishes to seek discretionary leave to remain on the basis that they will not receive adequate medical treatment in their home country.
Such applications in the past may have been bolstered by reference to the European Convention on Human Rights, article 3 of which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. In this context, reference is often made to the decision of the European Court of Human Rights in the case D v United Kingdom (1997) 24 EHRR 423. In that case, D was serving a period of imprisonment in the UK for a drug related offence. While he was in prison, he was diagnosed as being HIV-positive and suffering from AIDS. After his release, the government proposed to return him to his home country, St Kitts. The European Court noted that D was very close to death, that the care available for him in St Kitts would be inadequate, and that his removal would expose him to a real risk of dying under most distressing circumstances. It would, therefore, potentially amount to inhuman treatment under article 3, meaning that the UK government could not return him to St Kitts as intended.

However, the House of Lords recently overturned this decision with the recent outcome of N v Secretary of State for the Home Department [2003] EWCA Civ 1369. Essentially, the facts of the case are this: N arrived in the UK in 1998 from Uganda, seeking asylum. She was diagnosed as being HIV-positive with a CD4 count of 10 very soon afterwards. Following treatment, her condition is now stable (according to one of the judges, she now has a CD4 count of 414). However, her claim for asylum has been rejected and the Home Secretary proposes to deport her back to Uganda, where it is accepted she would be likely to die within a year or two for lack of medication and proper care.

The Court of Appeal (upholding the Immigration Appeal Tribunal's decision to overturn an earlier decision by the adjudicator) held that deportation would not violate N's rights under article 3 of the European Convention on Human Rights (the right to be free from torture or inhuman or degrading treatment). The House of Lords has now upheld that decision. It is likely that N and the thousands like her will face removal and a significant reduction in life expectancy.

http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050505/home.pdf

Entitlement to healthcare

Prior to April 2004, NHS treatment of all kinds was available free of charge to anyone who could show that they had been in the UK for more than 12 months. It was also available free to anyone currently applying for asylum or for leave to remain. This situation, ensured that anyone who was clearly a long stay resident of the UK, no matter how they became so, would receive the health treatment they needed. The Regulations governing NHS charging, and a number of key exemptions to them, were enshrined in the NHS Act 1977 and the NHS (Charges to Overseas Visitors) Regulations 1989. The exemptions included universal free treatment for a range of conditions on public health grounds. These included TB and all sexually transmitted infections except for HIV. For HIV, you had to wait twelve months to access free NHS services.

However, in response to media and political agitation about “treatment tourism” and the cost to the NHS of people allegedly flying in to the UK for the sole or primary purpose of exploiting the UK health system, new restrictions were imposed on all hospital services from April 2004. These new regulations mean that treatment for HIV (or for anything else not specially mentioned in the 1989 Amendment) would never be provided without charge for certain categories of people. This was despite the lack of any research showing the existence or extent of “treatment tourism” in HIV. Most migrants were unlikely to be aware of their status until they had been in the UK for more than nine months.

New NHS charging regulations were introduced in April 2004 after consultation. Amongst other changes, some genuinely beneficial (students, for instance, can now access NHS services without charge provided their course is of at least six months duration) the twelve-month rule was removed. This change means that long stay visitors, anyone in the UK without documentation, and anyone refused asylum or leave to remain, but not removed from the UK, are liable to be charged for any NHS services other than those provided in an emergency (usually interpreted as those available at A&E departments) or those outlined in the 1989 exemptions.

It is clear (as of November 2004) that these changes to the regulations are already causing hardship. It is also beginning to be clear in the case of HIV that, while they may result in a small short term cost reduction to local NHS budgets, in the longer term they are highly likely to have a negative effect in all three major areas – the public purse, the public health and individual health.

Mandatory screening for asylum seekers with HIV

In January 2003, the Cabinet office, in collaboration with the Department of Health and the Home Office, launched a closed inquiry into “imported infections”, examining the impact of some serious communicable diseases on public health in the UK, with particular focus on individuals coming from abroad. The main implication for the HIV sector would be that the Government was considering whether or not to require an HIV test from individuals coming into the UK: students, work-permit holders and asylum seekers in particular.

It is inappropriate to routinely screen all asylum applicants for HIV. Mandatory screening is against World Health Organization guidelines for implementing HIV/AIDS counselling (1993). The 45th World Health Assembly noted that "there is no public health rationale for any measures that limit the rights of the individual, notably measures establishing mandatory screening." It is important to offer confidential voluntary counselling and testing and support those at risk.