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Immigration and asylum law
UK immigration law is governed by the Immigration Act 1971. This has since been amended by subsequent pieces of legislation, particularly the Nationality, Immigration and Asylum Act 2002. More specific regulations are contained in the Immigration Rules, which are made by the Home Secretary and laid before Parliament. These are available online at
This section provides a brief overview of immigration and asylum law as it affects people with HIV. It is, however, in no way a comprehensive statement of the law and is no substitute for specialist advice. Immigration law is complex, changes frequently and it can be important to meet deadlines and follow correct procedures in order to preserve your legal rights. For that reason, anyone facing a problem concerned with this area of the law should seek proper advice at the earliest possible opportunity.
The relevance of being HIV-positive
Neither the legislation nor the Immigration Rules specifically mention HIV. The UK has not adopted a ban on persons with HIV entering the United Kingdom, unlike a small number of other countries (including, most significantly, the USA). HIV-positive status may nevertheless be relevant to asylum and immigration decisions, depending on the type of decision concerned and the situation of the individual concerned. It is essential here to distinguish between different categories of persons. There are, essentially, two questions: first, can being HIV-positive or having been diagnosed with AIDS be a barrier to entering the UK? And secondly, where a person is already in the UK, can being HIV-positive or diagnosed with AIDS be a reason which justifies continuing to remain in the UK when that individual would otherwise be required to leave?
People not subject to UK immigration law
Most obviously, British citizens are not subject to immigration law. Nor are citizens of other states within the European Economic Area (EEA), who have specific rights of entry to the UK. Certain Commonwealth citizens also have a “right of abode” in the UK. For these persons, being HIV-positive should not affect entry into the UK.
Any other person, however, requires leave to enter the UK (Immigration Rules, para 7).
Leave to enter the UK and HIV-positive status
Where a person requires leave to enter, the UK’s current (and long-standing) policy is that the fact that a person is HIV-positive, or has AIDS, is not in itself a ground for refusing leave to enter the UK. (Leave may, of course, still be refused if that person does not otherwise qualify for leave under the Rules.) However, the effect which a medical condition may have on a person’s ability to support himself or herself is a factor which the Immigration Officer may take into account in deciding whether to grant leave to enter.
A person who intends to remain in the UK for more than six months should normally be referred to the Medical Inspector for examination (Immigration Rules, para 36), and the inspector will be expected to estimate the cost of any treatment which may be required so that this can be considered by the Immigration Officer.
Entering the UK for medical treatment
A person may seek leave to enter or remain in the UK in order to receive private medical treatment. The relevant criteria are set out at paras 51-56 of the Immigration Rules. In particular, it will be necessary for such a person to show that he or she has sufficient funds to meet the costs of treatment. It is also necessary that the applicant “can show, if required to do so, that any proposed course of treatment is of finite duration” (para 51(iii)). It would not, therefore, normally be possible to use these provisions to seek entry to the UK for ongoing HIV or AIDS treatment, although they could, for example, apply for leave to enter to seek treatment for an HIV-related illness. Leave to enter for private medical treatment will, in practice, only be a realistic option for the relatively wealthy. NHS treatment is not automatically free for those from overseas.
Can HIV be a ground for remaining in the UK?
Where a person is entitled to apply for leave to remain on grounds unrelated to their HIV-positive status, then the same principle as noted earlier applies: the fact that someone is HIV-positive or has AIDS is not in itself a basis for refusing that application.
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 may be 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 the case of D v United Kingdom (1997) 24 EHRR 423, the European Court of Human Rights held that it would be a breach of article 3 for the UK government to deport a prisoner, very close to death as the result of AIDS, to his home country of St Kitts where care would be inadequate and he would be at a real risk of dying under most distressing circumstances.
However, in 2005, the House of Lords confirmed that the decision in D will be applied only in very exceptional circumstances. In N v Secretary of State for the Home Department [2005] UKHL 31, N, a Ugandan citizen entered the UK claiming asylum. She was diagnosed as being HIV-positive while in the UK. Her claim for asylum was unsuccessful, and she claimed that to return her to Uganda would violate her rights under article 3 of the European Convention. The court rejected this argument, holding that article 3 would not be violated solely on the basis that the medical facilities in the country to which a person was to be sent did not match those in the country which that person was to be removed from.
Following the decision in N, current Home Office guidelines state that “where the claimant would be in no worse position than the majority of people in his country of origin who suffer from the same condition, then a grant of Discretionary Leave would not normally be appropriate as it would not be an exceptional case.” (Immigration Directorate Instructions, chapter 1, section 8, part 3.4.) It is important, therefore, that if an application for discretionary leave is to be made, that care is taken to prepare a full and detailed case explaining the relevant circumstances.
Asylum law
In an appropriate case, it is possible that an HIV-positive person who has a “well-founded fear of persecution” because of their HIV status if they are returned to their home country might be able to claim asylum on that basis. Again, it would be essential to prepare a full and detailed case in support of such an application.