Immigration Bill

Written evidence submitted by the National AIDS Trust (NAT) (IB 29)

Immigration Bill: Public Bill Committee

About NAT

NAT (National AIDS Trust) is the UK’s HIV policy and campaigning charity. Over the past decade our work on immigration policy has included interrogating the myth of HIV health tourism, advocating for improved testing and access to HIV services in the asylum process, and publishing clinical best practice advice for healthcare teams working with HIV positive detainees, in collaboration with the British HIV Association (BHIVA).

Our work is focussed on achieving five strategic goals:

· Effective HIV prevention in order to halt the spread of HIV

· Early diagnosis of HIV through ethical, accessible and appropriate testing

· Equitable access to treatment, care and support for people living with HIV

· Enhanced understanding of the facts about HIV and living with HIV in the UK

· Eradication of HIV-related stigma and discrimination.

Summary

HIV treatment is available to everyone living in the UK, regardless of immigration status, but it must be adhered to exactly to be successful. In 2012, the Government removed any residency-based restrictions on access to HIV treatment in light of the immense public health benefit of universal access. Access to and adherence to HIV treatment means that a person living with HIV can maintain good health and become effectively non-infectious by supressing their viral load, the amount of HIV present in the body. By contrast, poor adherence increases the risk of poor virological control, which is associated with illness, increased risk of HIV transmission and in some extreme instances, death.

Although most people living with HIV in the UK now have a normal life expectancy and good quality of life thanks to access to treatment, there remains a significant minority who are disempowered. Migrant and asylum seeking people in the UK, especially those born in sub-Saharan Africa, carry a disproportionately large burden of HIV. [1] Migrants and asylum seekers with HIV also have greater vulnerabilities than the general HIV population, often exacerbated by living in extreme poverty and financial hardship. [2]

Financial hardship and destitution undermine the ability of asylum seekers living with HIV to manage their condition and adhere to treatment. Sufficient fresh and nutritious food is essential in order to take HIV medication as prescribed. Access to suitable warm clothing, travel costs to hospital appointments and potential accommodation adaptations are needed to avoid heightened health risks posed by having a compromised immune system. [3] Adults and children living with HIV and their families should be supported to maintain their health and manage their condition for as long as they remain in the UK, irrespective of their immigration status.

Our primary area of interest in the Bill therefore relates to proposals included in Part 5, which we believe will undermine the ability of people living with HIV to manage the condition and remain healthy.

Clause 34/Schedule 6: Support for certain categories of migrant

NAT has strong concerns with the implementation of schedule 6 (page 90, line 7) as brought into effect by clause 34 of the Bill, which will remove statutory accommodation and subsistence support from appeals-rights-exhausted (ARE) asylum seekers and people currently on immigration bail or temporary release from detention.

Repeal of section 4

1. Schedule 6 will repeal of section 4 of the Immigration Act 1999 (page 90, line 12). Section 4 currently allows for the provision of accommodation and basic subsistence support for ARE asylum seekers living with HIV who would otherwise be destitute. This will include those who remain in the UK due to health-related barriers to removal or where the Home Office is otherwise satisfied it is not currently possible for them to return to their country of origin.

2. Section 4 support will be replaced by a new form of support under section 95A. Section 95A provides a power to support ARE asylum seekers who can show a ‘genuine obstacle’ to leaving the UK – but not a duty to do so. It is worth noting that already, under the current section 4 regulations the applicant must show they are ‘taking all reasonable steps to leave the UK.’ The Bill does not provide any detail on what support will be available under s95A or how eligibility will be determined.

3. NAT believes that the removal of section 4 support will push ARE asylum seekers living with HIV further into destitution which undermines their ability to manage a serious life-long condition. We are not confident that the protection offered by section 95A will be sufficient to protect the human rights of ARE asylum seekers living with HIV, who will not be able to maintain their treatment regime and self-manage their condition without accommodation or subsistence support.

4. There is also a risk that individuals’ inability to manage HIV-related health needs due to destitution will have a broader public health impact. HIV treatment must be adhered to exactly in order to be effective. While treatment can completely supress the virus in the body, failure to take treatment as directed leaves people living with HIV vulnerable to opportunistic infections such as TB. Poor adherence also creates a risk of the development of drug resistance, limiting the treatment options for the individual and also anyone else who acquires that strain of the virus. Finally, those who are not adhering to effective treatment are much more likely to transmit the virus to others.

5. The public consultation document on the removal of support for ARE asylum seekers suggested that ARE asylum seekers remain in the UK because of the existence of asylum support payments. This is entirely unsupported by evidence. A significant proportion of the small number of ARE asylum seekers who remain in the UK do so despite not receiving any form of Home Office or local authority support. This is due to, amongst other things, their own perceived need for sanctuary in this country.

6. Rather than strengthening the integrity of the immigration system by supposedly encouraging ARE asylum seekers to leave the UK, we feel that restrictions to support payments would actually undermine the system through forcing people into destitution, homelessness and ill health without addressing the true barriers people face in leaving the UK. We anticipate the removal of basic subsistence support may even encourage some ARE asylum seekers to lose contact with the immigration system as they will have little incentive to remain in contact with the authorities once support is withdrawn. We are particularly concerned that if the latter were to happen, it would be detrimental to those living with HIV who may also avoid accessing HIV treatment and care services out of fear of being detected by the authorities.

7. NAT opposes the repeal of section 4 support and introduction of section 95A in its place.

Removal of section 95 support for ARE asylum seeker families

8. Schedule 6 also has the effect of removing access to section 95 support for ARE asylum seekers who have children. This will also have a devastating effect for the health of children who are living with or affected by HIV.

9. Parents who are living with HIV and lose their section 95 support will struggle to manage their own health needs, as described in points 3-4. This challenge grows exponentially if the family unit also includes children who are themselves HIV positive. Inability to meet these basic health needs will have an impact on the wellbeing of the family as a whole, increasing the demands they need to make on the NHS in future. By contrast, safe housing and a basic level of subsistence support will allow an HIV-affected family to self-manage their health needs at much lower cost.

10. The provision of section 95 support to ARE asylum seeking families plays another crucial public health function: NAT is aware that asylum seeking parents with refusal of final appeal use the s95 support they are given to directly prevent vertical (mother-to-child) transmission of HIV through the use of infant formula milk. UK national HIV guidelines recommend exclusive formula-feeding of infants born to mothers who are HIV positive, in order to prevent transmission of HIV to the infant through breast-feeding. [4] There is no NHS entitlement to free formula feed, meaning that destitute mothers must rely on the limited income support that is available from the Home Office to purchase this.

11. The removal of section 95 support from ARE asylum seekers families contradicts the aim of retaining important safeguards for children. Children are dependent on adults, cannot be held responsible for the actions of adults and must not be made to suffer for the consequences of any adult actions around asylum claims. In those cases where there are children living with HIV, every effort should be made to ensure that they have the resources needed to help manage their condition and remain healthy. Cutting off support to these children and the caregivers on whom they rely is irresponsible, unethical and fails on providing safeguards for some of society’s most vulnerable children.

12. NAT opposes the removal of section 95 support from ARE asylum seekers with children. We support the following amendment proposed by ILPA and Still Human Still Here:

Schedule 6, Page 93, line 37, delete ‘(5) omit sections (5) and (6)’

The right to appeal decisions on asylum support applications

13. Finally, NAT believes that proposed changes to remove the right of appeal against a decision to stop providing support (Schedule 6, Part 2) is fundamentally wrong. The right of appeal for support decisions is essential in preventing asylum seekers from incorrectly being denied support and forced into destitution. Evidence obtained by Still Human Still here has found that between 1 September 2014 and 28 February 2015, the Asylum Support Tribunal allowed 252 cases and remitted a further 71 cases back to the Home Office to retake the decision. This shows that the Home Office has the ability to make the wrong decision. Given the impact that a refused decision for support can have on the health of ARE asylum seekers living with HIV, the ability to challenge refused support decisions is critical.

14. NAT recommends that proposals to remove the right to appeal in schedule 6, part 2 of clause 34 must not be upheld under any circumstances and supports amendments proposed by ILPA to this effect:

Proposed amendment

Schedule 6, Page 90, line 30, at end insert-

"( ) If the Secretary of State decides not to provide support to a person under section 95A, or not to continue to provide support for a person under section 95A, the person may appeal to the First tier Tribunal."

Schedule 6, Page 90, line 29, leave out ‘and (7)’.

Schedule 6, Page 90, line 30, at end insert –

"in subsection (7) for ‘section 4 or 95’ substitute ‘section 95 or 95A’"

October 2015


[1] 47% of new UK HIV diagnoses in 2014 were in people born outside of the UK (32% outside of Europe). African-born people represented 20% of new UK diagnoses in 2014. PHE National HIV surveillance data tables https://www.gov.uk/government/statistics/hiv-data-tables

[2] NAT and THT, 2010, Poverty and HIV: 2006-2009. THT, 2013, Poverty and HIV.

[3] NAT and THT, 2010, Poverty and HIV: 2006-2009. THT, 2013, Poverty and HIV.

[4] British HIV Association (BHIVA) and Children’s HIV Association (CHIVA) Position Statement on Infant Feeding in the UK, Available here: http://www.bhiva.org/documents/Publications/InfantFeeding10.pdf

Prepared 3rd November 2015