Deportation from UK of refused HIV-positive asylum seeker to Uganda does not breach human rights, European Court rules

Michael Carter
Published: 27 May 2008

In what has been described as a "setback for human rights", the European Court of Human Rights has rejected an appeal by an HIV-positive Ugandan woman to remain in the UK.

Her legal team argued that her deportation to Uganda would mean that she would no longer be able to access anti-HIV treatment. This would lead to her premature death, which they argued you amount to “cruel and degrading treatment.” But the House of Lords and now the European Court have rejected the argument that this constitutes a breach to her human rights.

The ruling has been condemned by HIV advocates in the UK. Deborah Jack, chief executive of the National AIDS Trust commented: "The decision to send an HIV-positive woman back to Uganda is a setback for human rights. Once someone is given treatment for HIV, any change or interruption to that treatment is life-threatening."

Part of the UK government's case was that anti-HIV treatment is available in Uganda. But HIV campaigners have been quick to point out that access to such treatment in Uganda is limited. Deborah Jack said: "Just because a country has drugs does not mean that everyone in that country can access them, let alone pay for them."

This case has involved a long-running legal battle, its origins dating back to March1998. The woman, known as “N” arrived in the UK in that year under an assumed name. At the time of her arrival in the UK, no application for asylum was made. She was seriously ill and admitted to hospital. Her solicitors subsequently lodged an asylum application on her behalf, asserting that she had been raped by Ugandan soldiers because of her involvement with a rebel organisation. Later in 1998 she was diagnosed with two AIDS-defining illnesses.

In 2001 her appeal for asylum was rejected by the UK government which found no evidence that she was wanted by the Ugandan government. It was further argued that antiretroviral drugs are available in Uganda at subsidised cost.

An appeal against this decision was lodged, ultimately reaching the highest UK court, the House of Lords. In their ruling of 2005, the Law Lords were moved by the plight of the woman, but they did not conclude that her deportation would breach her human rights and nor would it be “inhuman, degrading treatment or punishment.”

An appeal to the European Court of Human Rights followed, with N’s lawyer’s arguing that her deportation would breach Article 3 of the European Convention on Human Rights as her removal from the UK would lead to her death within two years.

But this final legal avenue has now been closed by the European Court’s dismissal of the appeal.

HIV charities in the UK were eagerly awaiting the results of the appeal. Lisa Power of the Terrence Higgins Trust said ““HIV treatments are not universally available in Uganda. This decision, and others that will follow from it, is cruel and inhumane. HIV treatment is currently being rolled out globally but in many African countries it is still only accessible to a privileged minority, though we expect that to change.”

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

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