Immigration and asylum law

Edwin Bernard

Immigration law is complex, changes frequently and it is vital to meet deadlines and follow correct procedures in order to preserve your legal rights. For that reason, if you or anyone you know is facing a problem concerned with this area of the law, you must seek expert advice at the earliest possible opportunity. See More information and advice on HIV and the law for contact details of services that can help.

UK immigration law is governed by the Immigration Act 1971. This has since been amended by newer pieces of legislation, most recently the Borders, Citizenship and Immigration Act 2009.  Immigration law applies across all the countries in the UK.

Immigration Rules set out the different categories of people who will be allowed to enter or remain in the UK, and conditions of their entry and stay; for example, whether and how much they can work and their permitted length of stay. These rules are regularly updated and changed.  

Only British citizens and Commonwealth citizens with the right to live in the UK, nationals of member states of the European Economic Area (EEA) and Switzerland, and their dependants, whether EEA nationals or not, are entitled to enter the UK. All other people are “subject to immigration control” and need permission to enter and stay.

The rules allow people to enter or remain in the UK for a myriad of reasons including as visitors, students, workers, business people, retired persons, innovators, highly skilled migrants, asylum seekers and many more. There are detailed rules allowing family members of people already here to join them. These include provision for spouses and for unmarried partners, including same-sex partners, where a relationship has existed for at least two years. The rules contain nothing specific on people with HIV. 

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. Seek expert advice at the earliest possible opportunity. See More information and advice on HIV and the law for contact details of services that can help.

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” (the right to live) in the UK. For these people, being HIV positive should not affect entry into the UK.

Any other person, however, requires leave to enter the UK.

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” (less than six months). It would not, therefore, normally be possible to use these provisions to seek entry to the UK for ongoing HIV 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. Although HIV treatment is now free for everyone in the UK, whatever their immigration status, other 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.

You may be fearful of disclosing your status. But asking for an HIV test or telling someone you have HIV will not harm your application to enter or stay in the UK. 

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.

A key case making this claim was not successful. This means that similar cases are unlikely to be successful if the only factor in someone’s claim to stay in the UK as an asylum seeker is that they are living with HIV and that there may be consequences for their health if they have to return to their home country. 

This doesn’t mean a claim will not be successful if there are other claims for permission to stay, such as having lived here for a long time or having family here.

There may be exceptional circumstances where a claim of this type, without any other factors, may be successful. This might include cases where the welfare of children is involved, or where circumstances would make it impossible for someone to access or adhere to treatment. 

The outcome of cases can depend on the information available to the Home Office on the availability of HIV treatment in the country of origin.

Asylum law

There do not seem to be 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.

Recourse to public funds

People going through the immigration process are not usually eligible for ‘public funds’, i.e. housing assistance and most welfare benefits.

In very limited circumstances, children or adults who need to be ‘looked after’ by the local authority may be eligible for local authority support and/or accommodation. Usually where there is no other assistance available, local authority social services departments may provide accommodation, financial support and support services to children in need and their families, and to adults who need support because of physical or mental illness, disability or old age. 

To establish whether they have a duty to provide support, the local authority must conduct an assessment of need alongside a test of eligibility.

Once asylum is granted

While your claim for asylum is being examined, you may be eligible for ‘section 95’ support, which will provide you with accommodation and cash.

If you are considered a ‘destitute refused asylum seeker’, you may be eligible for ‘section 4’ support, consisting of accommodation and a payment card, or accommodation and meals. 

People receiving accommodation support may be moved to (often referred to being ‘dispersed’ to) any part of the country. There is a risk of your HIV treatment being interrupted if this process is not carefully managed.

If you haven’t yet started HIV treatment but need to, you may be moved quickly so you can start treatment in the area you have been moved to. If that is not possible, you should only be moved with the agreement of your HIV doctor, or before you have had a chance to prepare for your move with your doctor. 

You will get additional support if you are pregnant, or if you have children who have HIV.  

Many refusals to provide support have been successfully challenged. 

HIV support organisations and services for people going through the immigration system can help you find out what you are entitled to and with the application process. See More information and advice on HIV and the law.

Access to health care

Since October 2012, all HIV treatment has been free to all who need it, regardless of immigration status, in England.

Nonetheless, people with HIV may occasionally have difficulties accessing other types of health care or be asked to pay for it – for example when needing maternity care, kidney dialysis or cancer treatment. 

GPs (family doctors) can register new patients at their discretion, regardless of immigration or residency status. There is no obligation or expectation that they will check someone’s immigration status. There is no minimum period that you need to have been in the UK to be eligible.

The regulations covering healthcare arrangements for overseas visitors (which includes people going through the immigration process, as well as people visiting the UK) say that charges only apply to services provided in a hospital. Primary care and other community services do not charge overseas visitors.

However, there may be reasons why you find it difficult to register with a GP. A GP practice may ask for certain identity documents or proof of address, which you may not be able to provide. Your documents may be with the Home Office, or you may not have a permanent address. Or staff may have misunderstood the rules for providing primary care to people from overseas.

When you go to a GP practice to register, see if you can fill in a registration form with whatever documents you do have. This could be a letter from the Home Office or a photocopy of your passport. But a GP practice can register you even if you don’t have any documents.

It may help to ask to speak to the practice manager or to a doctor, and to explain the medical needs you have. You could try to encourage the practice to use the discretion it has to register patients. Your HIV doctor could write a letter explaining your medical need to access these GP services. If you are refused registration, ask to be given the reason for refusal in writing.

You may want to ask someone to help you with the process. A worker from an HIV support organisation may be able to provide advice or even come with you to help you register. The charity Doctors of the World UK has experience of helping migrants in London to register with GPs. See More information and advice on HIV and the law for contact details.   

While you are trying to register as a permanent patient, you can register as a temporary patient. You do not need a permanent address to do this; you can use a ‘care of’ address, such as a friend or day centre. You can also use NHS walk-in centres.

If you do experience difficulties it may help to contact your local NHS commissioning board area team (in England), community health councils (in Wales) health board (in Scotland and Wales), or health and social care trust (in Northern Ireland). See More information and advice on getting HIV treatment and care for contact details.

The situation in Northern Ireland is different to other parts of the UK. Here, you may find it harder or not possible to access primary care services. Talk to staff at your HIV clinic or an HIV support organisation about your options.

Contact NAM to find out more about the scientific research and information used to produce this section.

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.
Community Consensus Statement on Access to HIV Treatment and its Use for Prevention

Together, we can make it happen

We can end HIV soon if people have equal access to HIV drugs as treatment and as PrEP, and have free choice over whether to take them.

Launched today, the Community Consensus Statement is a basic set of principles aimed at making sure that happens.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap

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.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.