55. Memorandum from the UK AIDS and
Human Rights Project
1. The UK AIDS and Human Rights Project
(UK Project) is a London-based human rights organisation. The
UK Project has been established to promote and protect the rights
of people living with, affected by, and vulnerable to HIV and
AIDS in the UK.
2. We believe that human rights must be
used as a platform to increase the effectiveness of HIV and AIDS
related responses because they provide:
tools for making governments accountable
for HIV and AIDS-human rights;
a legal rationale for a human rights
based response to HIV and AIDS; and
an argument for ensuring that the
public is informed and educated about HIV and the impact of negative
attitudes and actions on people living with and/or affected by
HIV, and those at risk.
3. We have three aims:
to make the UK government accountable
for violations of HIV-related human rights;
to encourage the UK government to
adopt human rights based responses to HIV; and
to promote respect for HIV-related
rights by the public.
4. The UK AIDS and Human Rights Project
welcomes the Joint Committee on Human Rights Inquiry into the
treatment of asylum seekers. Our submission will focus on the
issue of asylum seekers and failed asylum seekers in the context
of HIV and AIDS. However, first, we would like to highlight general
points on human rights and the treatment of asylum seekers in
5. Since 9/11, there has been an alarming
tendency to treat counter-terrorism as a question of immigration
control. In the pursuance of draconian legislation, civil liberties
and human rights have been represented as if they were inevitably
antagonistic to "the national security interest". The
fight against terrorism only but added to existing public concern
about "the asylum issue" which has gained momentum since
the 1990s, with successive legislation, policy initiatives and
incessant media attention strongly combining to imply perceived
failures and problems with the asylum system.
6. The "war on terror" has led
to an erosion of human rights in the UK, including the right to
asylum. Over the past few years the UK government has adopted
policies and laws inconsistent with the fundamental human rights
principles of equality and non-discrimination, opting for a "pick
and choose" approach to human rights standards and considering
on several occasions to opt out of fundamental human rights commitments
under the ECHR. These suggestions of "opting out" of
various human rights obligations demonstrate that the government
is increasingly viewing its commitment to human rights as an expendable
obligation rather than a necessary responsibility. In August 2005,
Tony Blair said:
"Let no one be in any doubt that the rules
of the game have changed. Should legal obstacles arise, we will
legislate further, including, if necessary amending the Human
Rights Act in respect of the interpretation of the European Convention
on Human Rights." (5/8/2005).
7. Just a couple of months before, in his
June 2005 report and following his visit to the UK in November
2004, the Council of Europe's Commissioner for Human Rights noted:1
"The United Kingdom has not been immune
(...) to a tendency increasingly discernable across Europe to
consider human rights as excessively restricting the effective
administration of justice and the protection of the public interest.
The Government itself has every right to be proud of its achievement
in introducing the Human Rights Act and has proven itself to be
acutely conscious of the contours of the obligations entailed.
I was struck, however, by the frequency with which I heard calls
for the need to rebalance rights protection, which, it was argued,
had shifted too far in favour of the individual to the detriment
of the community. Criminal justice, asylum and the prevention
of terrorism have been particular targets of such rhetoric, and
a series of measures have been introduced in respect of them which,
often on the very limit of what the respect for human rights allows,
occasionally overstep this mark.
Against a background, by no means limited to
the United Kingdom, in which human rights are frequently construed
as, at best, formal commitments and, at worst, cumbersome obstructions,
it is perhaps worth emphasising that human rights are not a pick
and mix assortment of luxury entitlements, but the very foundation
of democratic societies. As such, their violation affects not
just the individual concerned, but society as a whole; we exclude
one person from their enjoyment at the risk of excluding all of
us." (paras. 3-4)
8. Since then, the government's increasingly
drastic approach to returns and its reliance on diplomatic assurances
and memoranda of understanding to facilitate deportations to states
with appalling human rights records, including those using torture,
have led to a total disregard for the principle of non-refoulement
and the rights of those seeking asylum.
9. We note that concerns over the UK's asylum
policy and the treatment of asylum seekers have been voiced by
the United Nations and the Council of Europe. In particular, in
his 2005 report,2 the Commissioner for Human Rights was unequivocal
about his concerns in relation to the government's asylum related
policy and legislation, including the increasing use of detention,
the use of fast-track asylum procedures, the length and conditions
of detentions, and the detention of children, stressing that the
UN High Commissioner for Refugees (UNHCR) "Revised Guidelines
on Applicable Criteria and Standards relating to the Detention
of Asylum Seekers" ("Detention Guidelines") are
clear about the "inherent undesirability of detaining children
in relation to asylum proceedings".
10. Already in 2001, the Human Rights Committee
(HRC) expressed concerns that asylum seekers were detained in
various facilities and in particular they considered it unacceptable
that asylum-seekers were detained in prisons. The Committee made
a clear recommendation that the UK government should end its detention
of asylum seekers in prisons and that it should closely examine
its system of processing asylum seekers in order to ensure that
each asylum seeker's rights under the Refugee Convention receive
full protection, being limited only to the extent necessary and
on the grounds provided for in the International Covenant on Civil
and Political Rights.
11. In its 2002 Concluding Observations
on the UK's implementation of the Convention on the Rights of
the Child (CRC), the UN Committee on the Rights of the Child expressed
its concern that the detention of an increasing number of children
claiming asylum in the UK is incompatible with the provisions
of the Convention.
12. The UK is party to these key treaties:
International Covenant on Civil and
Political Rights (ICCPR).
International Covenant on Economic,
Social and Cultural Rights (ICESCR).
International Convention on the Rights
of the Child (CRC).
International Convention on the Elimination
of Discrimination Against Women
International Convention Against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
European Convention on Human Rights
13. The UK is also a party to the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol.
14. The UK has made substantial reservations
to some of the treaties and did not ratify some of their subsequent
protocols. We note in particular in the context of immigration,
the following reservations:
Reservation to the CRC in respect
of the entry, stay in and departure from the UK, of those children
subject to immigration control and the acquisition and possession
of citizenship. The government justifies this reservation as necessary
in the interests of effective immigration control but has stated
that the reservation does not prevent the UK from having regard
to the Convention in its care and treatment of children. However,
evidence shows that there is a lack of adequate of protection
and care for children in detention. We also note that this reservation
has been criticised by the UN Committee on the Rights of Child
and the Joint Committee on Human Rights.
Reservations to the Refugee Convention,
including retaining the right to take certain action in times
of war, national emergency or for national security reasons.
Reservation to the ICCPR in relation
to the right to continue to apply such immigration legislation
governing entry into, stay in and departure from the UK as they
may deem necessary from time to time and, accordingly, their acceptance
of Article 12(4) and of the other provisions of the Covenant is
subject to the provisions of any such legislation as regards persons
not at the time having the right under the law of the UK to enter
and remain in the UK.
15. Since October 2000, the Human Rights
Act 1998 (HRA) incorporates most of the ECHR rights into UK law.
Immigration rules require immigration officers and all of the
staff at the Immigration and Nationality Directorate to ensure
that their decisions comply with the Human Rights Act.
16. The HRA has been increasingly used to
challenge the government's policy on asylum through judicial review
proceedings or cases brought by failed asylum seekers.
17. A number of cases have centred on the
question of whether or not the return of an individual to a country
where they will not be able to access the medical treatment that
their condition requires amounts to a breach of Art 3. A key issue
raised in judicial review has been the government's policy on
denying welfare support to asylum seekers who do not claim asylum
immediately upon arrival under section 55 of the Nationality,
Immigration and Asylum Act 2002.
AND HIV IN
18. HIV and AIDS are not explicitly mentioned
in international human rights law, however the link between HIV,
AIDS and human rights, as contained in human rights treaties such
as the ICESCR, ICCPR, and the CRC and under international human
rights law has been reiterated and increasingly clarified in the
normative statements of the General Assembly and the United Nations
human rights treaty monitoring bodies as well as numerous resolutions
of the Commission on Human Rights.
19. The most important standard in relation
to the application of international human rights law in the context
of HIV and AIDS are the "International Guidelines on HIV/AIDS
and Human Rights" ("HIV/AIDS Guidelines")3 published
by the Office of the United Nations High Commissioner for Human
Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS
20. The HIV/AIDS Guidelines are firmly anchored
within a framework of existing human rights principles, norms
and standards contained in various regional and international
human rights instruments. Although non-binding, they provide authoritative
interpretations of human rights standards and aim to assist governments
in translating human rights principles into practical observance
in the context of HIV and AIDS.
21. The HIV/AIDS Guidelines include provisions
relevant to the context of treatment of asylum seekers, especially
in relation to the right to seek and enjoy asylum, the right to
liberty and security, the right to health, the right to be free
from inhuman or degrading treatment, the right to be free from
discrimination and the right to adequate standards of living.
They also address the rights of children and women.
22. We would also like to mention the following
documents that consider and provide guidance on the rights of
asylum seekers in the context of HIV and AIDS:
The "Note on HIV/AIDS and the
Protection of Refugees, IDPs and Other Persons of Concern"
("Note on HIV/AIDS") published by UNHCR aims to inform
governments of recognised standards in the field of HIV and AIDS
and the protection of persons of UNHCR's concern.
"Strategies to support the HIV-related
needs of refugees and host populations"4 has been published
by UNAIDS/UNHCR and aims to inform and support key decision-makers
on HIV-related issues facing refugees, other populations of concern
to UNHCR, and the population of host countries.
The "General Comment No 3 on
HIV/AIDS and the rights of child" aims, inter alia, to
promote the realisation of the human rights of children in the
context of HIV and AIDS, as guaranteed under the CRC and to identify
measures and good practices to increase the level of implementation
by States of the rights related to the prevention of HIV and the
support, care and protection infected with or affected by HIV
23. There were 5,490 applications for asylum
in the UK in the second quarter of 2006 (April to June). This
was 15% lower than the previous quarter and was 12% less than
the second quarter of 2005. The top five applicant nationalities
were Afghan, Chinese, Eritrean, Iranian and Somali.5
24. Asylum seekers are not economic migrants.
They flee their countries because they are looking for a place
of safety. The top 10 refugee producing countries in 2005 all
have poor human rights records or are places where war or conflict
25. Asylum seekers are not health migrants
coming to the UK to access free NHS treatment. There is no evidence
that people come to the UK because of their health. The "health
tourism" theory has been said to be unfounded by health professionals
treating asylum seekers. The British Medical Association (BMA)
has found that asylum seekers, far from arriving in the UK with
diseases, are more likely to become ill once they have arrived
in the UK due to poor living conditions and lack of money for
26. Most asylum seekers do not choose their
destination country. Most of those that do come to the UK because
they have friends or family already here.8
27. In 2004, over 97 million foreign nationals
entered the UK, including 300,000 students. Asylum seekers represented
just 0.035% of the total.9
28. The number of asylum claims to industrialised
countries, including the UK, is declining. According to UNHCR
"the number of people claiming asylum in the UK has dropped
61 per cent over the last two years, back to the levels not seen
since the early 1990s".10
29. Home Office decision-making remains
poor. Twenty per cent of asylum appeals decided in 2005 resulted
in Home Office decisions being overturned.
30. Most of the people refused asylum in
2003-04 were not removed, including more than 4,000 Sri Lankans,
4,000 Iraqis, 3,500 Afghans, 3,000 Turkish people, 3,000 Somalis,
3,000 Iranians, and 2,500 Zimbabweans. These are people from countries
where there is anarchy, war, or human rights abuses, living in
the UK without support or official status. They are unable or
unwilling to return to their country, and the government is unable
or unwilling to return them. 11
HIV TREATMENT AND
Healthcare Needs of Asylum Seekers
31. The healthcare needs of asylum seekers
have been examined in numerous and comprehensive reports. We will
not provide an in-depth summary of each report but wish to highlight
the common themes and issues raised in the research reports available:
Most asylum seekers' health problems
are not specific to refugee status and are shared with other deprived
or excluded groups. Health problems that are specific to asylum
seekers originate from the physical or mental torture, or other
harsh conditions from which they have escaped.
Some asylum seekers come from countries
where access to healthcare is difficult due to conflict and lack
of resources and as a result, they tend not to have received the
appropriate immunisations and vaccinations and are susceptible
to infectious diseases when held together for several months with
other asylum seekers.
It is estimated that 899 asylum seekers
living with HIV entered the UK between October 2003 and September
2004, equivalent to approximately 20% of the total of new cases
reported in the UK.
It is estimated that over 50% of
women refugee and asylum seekers in the UK, the majority of whom
come from Africa, are fleeing rapemostly perpetrated by
soldiers, police or agents of the state. 12
32. Common healthcare needs that have been
communicable diseases (TB, HIV, Hepatitis
A, B and C, parasitic diseases);
physical effects of war/conflict/torture;
sexual health care (for example as
a result of rape and/or sexual violence).
symptoms of psychological distress,
Policy and Legislation on Asylum Seekers: Access
to Healthcare and HIV Treatment
33. Since April 2004, the amended NHS Regulations
on charges to overseas visitors13 deny failed asylum seekers and
undocumented migrants free hospital healthcare (except in an A&E
department) and free HIV treatment and care on the NHS in England
and Wales. Only HIV testing and the associated counselling are
available free of charge.
34. The current policy on entitlement to
primary care is unclear. In August 2004 the government completed
a consultation on "Proposals to exclude overseas visitors
from eligibility to free NHS primary medical services",14
aiming to align primary care with changes in April 2004. No decision
has been made and general practices have the discretion to register
overseas visitors for NHS primary medical services, although such
registration does not provide entitlement to referral for hospital
care. Under the new proposals practices would have no discretion
to register overseas visitors, failed asylum seekers, people who
overstay their visas, and those without official papers, although
the provision for emergency and immediately necessary treatment
35. In March 2006 the Department also published
an "Entitlement Table" which includes a section on failed
asylum seekers reading as follows:
"The Department of Health has sought to
allay confusion over the entitlements of failed asylum seekers
to primary care without charge. Health service Circular 1999/018
states that failed asylum seekers should not be registered, but
equally, GP practices have the discretion to accept such people
as registered NHS patients. Ministers wish to bring greater clarity
and consistency to the rules regarding access to primary medical
services and so have recently sought views on this issue as part
of a consultation on the entitlement of overseas visitors to NHS
primary care services. Ministers are still considering the responses
and the outcome of the consultation has not yet been announced.
Therefore the current situation remains unchanged."
36. So whilst failed asylum seekers have
a right to free emergency or immediately necessary treatment from
a GP, it seems to be at the GP's discretion whether or not they
are allowed to register with the practice for other primary care
37. Other government's policies have had
an impact on destitute asylum seekers' access to healthcare but
also on their health. An asylum seekers is said to be destitute
if he/she does not have adequate accommodation or any means of
obtaining it (whether or not his other essential living needs
are met); or he/she has adequate accommodation or the means of
obtaining it, but cannot meet other essential living needs. 15
38. The National Asylum Support Service
(NASS) provides support and accommodation to newly arrived asylum
seekers awaiting a decision on their asylum application from the
Home Office. Asylum seekers, like anyone, are entitled to free
health and social care services in addition to the housing and
subsistence support from NASS.
39. We note that Section 55 of the Nationality,
Immigration and Asylum Act 2002, which provided for the withdrawal
of welfare support for childless adults who did not apply for
asylum "as soon as reasonably practicable" after arriving
in the UK, was abandoned following the House of Lord's judgment
in R (Limbuela) v Secretary of State for the Home Department16
which stated that denial of accommodation and support amounted
to a violation of Art 3 ECHR if it forced someone into destitution,
the Government abandoned the policy. However, the government is
still applying Section 55 to all "late" applications
for subsistence-only support (ie support without accommodation).
40. Section 4 of the 1999 Act, as amended
by the Nationality, Immigration and Asylum Act 2002 and the Asylum
and Immigration (Treatment of Claimants, etc) Act 2004, enables
asylum seekers whose claim has been rejected (including at appeal)
and who are no longer able to receive full NASS support to apply
for reduced provision of accommodation and food.
41. There are very strict criteria for receiving
this support and to qualify, a client must meet one of the following
(1) He or she is taking "all reasonable
steps to leave the UK, or to place themselves in a position in
which they are able to leave the UK".
(2) He or she is "unable to leave the
UK by reason of a physical impediment to travel or for some other
(3) He or she is "unable to leave the
UK because in the opinion of the [Home Secretary] there is currently
no viable route of return available".
(4) He or she has applied to the courts for
judicial review of a decision in relation to his or her asylum
claim, and a court has granted permission to proceed.
(5) The provision of accommodation (and subsistence
support) is otherwise necessary to avoid a breach of his or her
human rights, within the meaning of the HRA. This can include
where the applicant has made a fresh asylum claim and this is
still under consideration by the Home Office, and where the applicant
has made a late (ie out of time) appeal to the Asylum and Immigration
Tribunal (AIT) and the AIT is still considering whether to allow
the appeal to proceed.
42. "Hard Case" support is usually
very basic. People receive £35 food vouchers per week, irrespective
of age or need. The vouchers fail to adequately meet people's
needs, particularly those which fall outside toiletries and food.
17 Support includes full board only, hostel accommodation. If
there is no full board accommodation people may be placed in remote
overflow accommodation, but they receive only vouchersno
cash support is given.
43. The NASS support system has been criticised
for being inefficient and inadequately prepared to deal with the
increase in the number of failed asylum seekers, leading to a
shameful number of destitution. 18 In particular, the Citizens
Advice Bureaux recent report on NASS and Section 4 has highlighted
pressing issues including the problem of access to healthcare
noting that "the limited access of failed asylum seekers,
including those on NASS section 4 support, to free NHS medical
care, has causedand continues to causehardship and
anxiety to supported individuals." Section 4 support only
exists in a cashless economy, leaving failed asylum seekers unable
to pay for healthcare bills.
44. The large majority of failed asylum
seekers are refused support under Section 4 and are left destitute
relying on charities and families to live. Research has shown
that destitution is characterised by a number of recurring symptoms,
including: lack of shelter and sleeping rough; unsanitary and
vermin infected accommodation, lack of privacy in accommodation,
inability to feed and cloth oneself; and a reliance on informal
45. We note that under section 21(1) (A)
of the National Assistance Act 1948, local authorities must provide
asylum seekers with special needs with residential accommodation
and associated assistance. All asylum seekers with special needs
have the right to a community care assessment carried out by the
social services, but there is evidence that assessments are not
carried out even when requested and that there are significant
delays, very often because of the dispute between NASS and the
local authority over who should provide the services. Some asylum
seekers in desperate need of services can end up being denied
them completely because a dispute is never resolved. 19
46. Of significant relevance in the context
of this submission is R (M) v Slough Borough Council. 20
M was an asylum seeker had AIDS. He requested Slough Borough Council
to undertake an assessment with a view to his being provided with
accommodation under section 21 of the 1948 Act. The Council's
community care assessment concluded that although M required medical
care he could look after himself and was not in need of care and
attention. The Court quashed this decision holding that it was
not necessary for the purposes of section 21 for the care and
attention to come from the local authoritysomeone requiring
continuous medical attention needed care and attention. M's increased
vulnerability due to his illness made his need for care and attention
greater and did not solely arise from his destitution. The responsibility
for M therefore lay with the local authority. Below are the relevant
paragraphs of the judgment:
"... someone suffering from [AIDS] ... is
clearlyand the medical evidence confirms thismore
vulnerable than the able-bodied. So if he loses his accommodation
and becomes destitute, his need for care and attention is indeed
going to be the greater because of his condition and it cannot,
therefore, be said that the need arose solely because of the destitution
or because of the physical effects of the destitution. No doubt
the physical effects on him of destitution would be more severe,
but they would be more severe, not because of the destitution
but because of the destitution plus the illness. Quite apart from
that, it seems to me that one has to look at what is the meaning
of care and attention and consider whether the authority's view
that there was no need for care and attention resulting from the
AIDS condition is one which, in the circumstances, can be upheld."
"Care and attention means, or can mean (...)
`looking after'. It is not necessary, as all the authorities under
section 21 show, for the need for care and attention to be for
care and attention provided by the local authority. It is a general
need for care and attention and, as it seems to me, a person who
is chronically ill and who, therefore, needs continual medical
care and continual provision of medicines is, by that very fact,
properly to be said to be in need of care and attention. Whether
that need for care and attention will in a particular case mean
that he is required to have accommodation is a wholly different
question and it may well be that in cases not involving asylum-seekers,
where there are other means whereby these matters can be provided
for, section 21 will not come into play at all.
In a case such as the present, it seems to me,
someone who is chronically ill is properly to be regarded as being
in need of care and attention, not solely because he is destitute.
Therefore, in this case, the appropriate responsibility lies with
Slough rather than with the Home Office through NASS." (paras.
47. This ruling was upheld by the Court
of Appeal. This case dealt with the advanced stage of HIV but
the judge's reference to chronic conditions suggest that a failed
asylum seeker with HIV would also be deemed in need of care and
attention because of this medical condition.
48. Yet, people receiving section 4 support
who have special needs continue to experience difficulties accessing
additional support to meet these needs from Local Authorities.
49. In particular, we note that asylum seekers
living with HIV are not automatically entitled to social services.
The criteria are tight and they will only qualify for social services
support if they are unable to care for themselves and have no
other friends or immediate family members to help them. The Refugee
Council reported cases of people living with HIV who used the
small amount of cash provided by NASS for food and the rest for
emergency travels to hospital: 21
"Khalid is HIV positive. He has a loaf of
bread, a litre of milk and jam in the fridge for his meals and
saves his remaining money for hospital travel and a phone card
to speak to his mother in Africa."
50. The impact of destitution on health
has been well reported. 22 In the specific context of HIV, the
lack of access, to adequate food and accommodation will have a
significant impact on a person's health and will undoubtedly lead
to a worsening in their condition.
Right to Health
51. The Right to Health is protected under
Art 25 UDHR and Art 12 ICESCR. It is also recognised, inter
alia, in Art 5 CEDR, in Arts 11 and 12 CEDAW and Art 24 CRC.
52. In the context of asylum seekers' access
to healthcare, the right to health has to be considered in conjunction
with the right to free from discrimination guaranteed, inter
alia, under Art 2(2) ICESCR. Access to health care is also
one of the rights contained in the 1951 Convention.
53. The Committee on the Economic, Social
and Cultural Rights has published General Comment No 14 on
the Right to the highest attainable standard of Health (Art
12 ICESCR) which provides the most comprehensive definition of
the right to health. In particular:
It is not confined to the right to
health care and embraces a wide range of socio-economic factors
that promote conditions in which people can lead a healthy life;
it extends to the underlying determinants of health (eg food and
nutrition, housing, access to health-related education and information,
including on sexual and reproductive health).
It includes reproductive, maternal
(pre-natal as well as post-natal) and child health care.
It should be available (eg public
health and healthcare facilities, essential drugs); accessible
(ie health facilities, goods and services must be accessible to
all, especially the most vulnerable or marginalised sections of
the population, in law and in fact, without discrimination on
any of the prohibited grounds) including economic accessibility
(ie affordability- health facilities, goods and services must
be affordable for all. Payment for health-care services, as well
as services related to the underlying determinants of health,
has to be based on the principle of equity, ensuring that these
services, whether privately or publicly provided, are affordable
for all, including socially disadvantaged groups) and physical
accessibility (health facilities, goods and services must be within
safe physical reach for all sections of the population, especially
vulnerable or marginalised groups; acceptable (ie all health facilities,
goods and services must be respectful of medical ethics and culturally
54. The GC contains provisions on States'
specific legal obligations which include an obligation on governments
to refrain from denying or limiting equal access for all persons,
including asylum seekers and illegal migrants, to preventative,
curative and palliative health services:
"(...) States are under the obligation to
respect the right to health by, inter alia, refraining from denying
or limiting equal access for all persons, including prisoners
or detainees, minorities, asylum seekers and illegal immigrants,
to preventive, curative and palliative health services; abstaining
from enforcing discriminatory practices as a State policy; and
abstaining from imposing discriminatory practices relating to
women's health status and needs." (para 34)
55. It also sets out core obligations including:
"To ensure the right of access to health
facilities, goods and services on a non-discriminatory basis,
especially for vulnerable or marginalized groups." (para
56. The GC defines violations of Art 12
ICESCR as encompassing:
"Violations of the obligation to respect
are those State actions, policies or laws that contravene the
standards set out in article 12 of the Covenant and are likely
to result in bodily harm, unnecessary morbidity and preventable
mortality. Examples include the denial of access to health facilities,
goods and services to particular individuals or groups as a result
of de jure or de facto discrimination; (...) the suspension of
legislation or the adoption of laws or policies that interfere
with the enjoyment of any of the components of the right to health
(...)" (para 50)
"Violations of the obligation to fulfil
occur through the failure of States parties to take all necessary
steps to ensure the realization of the right to health. Examples
include the failure to adopt or implement a national health policy
designed to ensure the right to health for everyone; insufficient
expenditure or misallocation of public resources which results
in the non-enjoyment of the right to health by individuals or
groups, particularly the vulnerable or marginalized; the failure
to monitor the realization of the right to health at the national
level (...)." (para 52)
57. In the particular context of HIV, the
HIV/AIDS Guidelines make reference to Art. 12 ICESCR and state
"States may have to take special measures
to ensure that all groups in society, particularly marginalized
groups, have equal access to HIV-related prevention, care and
treatment services. The human rights obligations of States to
prevent discrimination and to assure medical service and medical
attention for everyone in the event of sickness require States
to ensure that no-one is discriminated against in the healthcare
setting on the basis of their HIV status." (para 146)
58. Furthermore, referring to the HIV/AIDS
Guidelines and international law and principles, UNHCR's Note
on HIV/AIDS states that:
"Based on the international refugee and
human rights principles (...), and given that equal and non-discriminatory
access to ART is a vital component of ensuring the right to the
highest attainable standard of physical and mental health, host
governments which are parties to the above-mentioned instruments
[including the ICESCR] should ensure that refugees, IDPs and other
persons of concern have access, on an equal and non-discriminatory
basis, to existing national health and HIV programmes or their
equivalent. This includes access to national ART programmes, or
their equivalent, and access to other essential drugs which are
available to the host population." (para. 20)
59. Although the ICESCR is not incorporated
into UK law and thus is not justiciable, it is a binding treaty
and as a state party to the Covenant, the UK government has legal
obligations to implement the treaty's provisions, which is monitored
by the Committee on Economic, Social and Cultural Rights.
60. In its latest monitoring report on the
UK in 2002two years prior to the introduction of the revised
NHS charging system, the Committee criticised "de facto discrimination
in relation to some marginalised and vulnerable groups and asked
the UK to ensure that its obligations under the covenant were
taken into account in national legislation and policy on health
Is the UK Government's policy justified under
international human rights law?
61. Under international human rights law,
interferences with fundamental rights and freedoms (defined as
"qualified rights" versus "absolute rights")
may be justified when all of the following criteria are met:
(1) the restriction is provided for and carried
out in accordance with the law;
(2) it serves the interest of a legitimate
objective of general interest;
(3) is strictly necessary to achieve this
(4) is the least intrusive and least restrictive
means available; and
(5) is not imposed arbitrarily or discriminatorily.
62. These criteriaalthough the wording
may differare set out in human rights treaties.
63. Article 4 of the ICESCR permits the
limitation of individual rights on grounds of "promoting
the general welfare in a democratic society". Article 5(1)
further states that "[n]othing in the present Covenant may
be interpreted as implying for any State (...) any right to engage
in any activity or to perform any act aimed at the destruction
of any of the rights or freedoms recognized herein, or at their
limitation to a greater extent than is provided for in the present
Covenant." In the specific context of the right to health,
Art 4 ICESCR is further defined by Paras 28-29 of the GC No 14
"Issues of public health are sometimes used
by States as grounds for limiting the exercise of other fundamental
rights. The Committee wishes to emphasize that the Covenant's
limitation clause, article 4, is primarily intended to protect
the rights of individuals rather than to permit the imposition
of limitations by States (...)Such restrictions must be in accordance
with the law, including international human rights standards,
compatible with the nature of the rights protected by the Covenant,
in the interest of legitimate aims pursued, and strictly necessary
for the promotion of the general welfare in a democratic society.
In line with article 5.1, such limitations must
be proportional, ie the least restrictive alternative must be
adopted where several types of limitations are available. Even
where such limitations on grounds of protecting public health
are basically permitted, they should be of limited duration and
subject to review."
64. The government's rationale for introducing
charging for failed asylum seekers and other undocumented migrants
has been in the public interest (which it is argued, falls under
the objective of "promoting the general welfare").
65. The government's argument was alleged
"health tourism" and the assumption that the new charging
regime would save the NHS significant funds which could be spent
instead on those legally resident. However, there is no evidence
of abuses by asylum seekers, including in relation to access to
HIV treatment. Whilst the Department of Health's original consultation
provided examples of "abuses" that should be stopped,
these only related to people coming to the UK for a short period
to use the NHS, for example during pregnancies to access maternity
services, rather than people who are staying in the UK long term
without being legally resident. The document did not contain any
specific examples of people migrating to the UK as "health
tourists" to use NHS services for HIV or for any other chronic
66. However, there is extensive evidence
that NHS services are overstretched due to prolonged under-funding
not because of asylum seekers or other migrants abusing the system.
In the particular context of HIV, treatment provision represents
less than 0.1% of the total NHS budget. The NHS spends £3.8
billion per year on alcohol related illnesses as opposed to £279
million on HIV treatment and prevention. Indeed the NHS expenditure
on heart disease is £7 billion a year.
67. There is also no evidence that HIV-positive
asylum seekers (or other migrants) are coming to the UK to access
free healthcare, with the majority ignoring their HIV status when
entering the country and only getting tested months later. 24
68. Therefore the public interest argument
does not seem to meet the criteria of being a legitimate objective.
69. We also note that GC 14 highlights that
the right to health "embraces a wide range of socio-economic
factors that promote conditions in which people can lead a healthy
life, and extends to the underlying determinants of health, such
as food and nutrition, housing, access to safe and potable water
and adequate sanitation, safe and healthy working conditions,
and a healthy environment." This is relevant in the context
of the destitution of failed asylum seekers and the needs of asylum
seekers with healthcare needs examined in paras 37-50 of this
70. The right of everyone to an adequate
standard of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement
of living conditions is guaranteed under Art 11 ICESCR. States
Parties to the Covenant have an obligation to take appropriate
steps to ensure the realisation of this right.
Right to be free from inhuman and degrading treatment
71. Freedom from inhuman treatment is an
absolute right whose violation is not justifiable. It is protected
under Art 5 UDHR, Art 7 ICCPR, the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), as well as in the relevant provisions of other international
and regional human rights instruments such as the CRC and ECHR.
72. Art 3 ECHR, which is incorporated into
the HRA, states that "no one shall be subjected to torture
or to inhuman or degrading treatment or punishment".
73. The application of Art.3 is not limited
to cases involving inflicted ill-treatment, and the ECtHR has
also considered that harsh medical conditions can lead to the
protection of Art 3. For example, Art 3 has been used to prevent
the UK from deporting HIV-positive failed asylum seekers to their
country of origin. 25
74. However, it is argued that Art 3 is
also relevant in relation to denial of healthcare to failed asylum
seekers, including HIV treatment, which will be the focus of this
75. The European Court of Human Rights'
(ECtHR) jurisprudence on Art 3 provides key arguments that are
pertinent to the issue of access to HIV treatment for failed asylum
76. In particular, we note that the ECtHR
held that a refusal to provide access to essential healthcare
may exceptionally lead to "treatment" which is so severe
that it may violate Art.3 ECHR. The test of "severity"
is high and was outlined in Pretty v UK: 10
"As regards the types of `treatment' which
fall within the scope of article 3 of the Convention, the Court's
case law refers to `ill-treatment' that attains a minimum level
of severity and involves actual bodily injury or intense physical
or mental suffering. Where treatment humiliates or debases an
individual showing lack of respect for, or diminishing, his or
her human dignity or arouses feelings or fear, anguish or inferiority
capable of breaking an individual's moral and physical resistance,
it may be characterised as degrading and also fall within the
prohibition of article 3. The suffering which flows from naturally
occurring illness, physical or mental, may be covered by article
3, where it is, or risks being exacerbated by treatment, whether
flowing from conditions of detention, expulsion or other measures,
for which the authorities can be held responsible."
77. As mentioned in para 67, there is evidence
that asylum seekers only find out about their HIV status after
they arrived in the UK and many already present advanced symptoms.
78. Failed asylum seekers are entitled to
free counselling and HIV-testing. Those who test HIV-positive
are left with a devastating diagnosis and the emotional and psychological
implications it implies, not only in terms of copying and dealing
with the diagnosis but also due to the stigma and discrimination
attached to HIV including within their own community.
79. The government's policy on HIV treatment
means that people who are diagnosed with HIV may not be given
access to life saving treatment that will enable them to remain
in good health for several years and significantly improve their
prognosis. As a result, the feeling of anguish, fear and distress
caused by a diagnosis is likely to increase significantly because
they are denied HIV treatment and care.
80. It is also argued that Art. 3 may be
at stake in the case of pregnant HIV-positive women who cannot
afford drugs which significantly reduce chances of vertical transmission
of HIV from mother to child, as well as elective caesarean, exposing
her baby to a high risk of HIV transmission (25-35%) in contrast
to below 1% for women who are given ante-natal HIV treatment.
Knowing that she may infect her unborn baby with HIV will cause
stress and significant emotional and psychological effects on
the mother-to-be and arguably, will also impact on her physical
health and well being. The consequence might also be extremely
grave with the birth an HIV-positive baby when access to adequate
drugs would have considerably reduced the risk of transmission.
81. A third Art 3 argument is that knowing
that they cannot access and/or afford HIV treatment may lead to
failed asylum seekers (and other undocumented migrants) not coming
forward for testing, increasing a risk of health deterioration
for those unknowingly living with HIV and exposing them to psychological
and physical suffering when diagnosed at a later stage of infection.
82. States parties to the Convention are
under an absolute obligation not to take steps which would expose
people to the risk of article 3 ill-treatment (ie a negative obligation).
They are also under a positive obligation to take reasonable steps
to protect people against serious harm. 27
83. The ECtHR has made it clear that States'
obligations under Art 3 apply to all individuals within their
jurisdiction, regardless of the "reprehensible nature of
the conduct of the person in question":
"Regardless of whether or not [the applicant]
ever entered the United Kingdom in the technical sense (...)it
is to be noted that he has been physically present there and thus
within the jurisdiction of the respondent State within the meaning
of Article 1 of the Convention (art 1) since 21 January 1993.
It is for the respondent State therefore to secure to the applicant
the rights guaranteed under Article 3 (art 3) irrespective of
the gravity of the offence which he committed." (para 48)
84. It is argued that by charging failed
asylum seekers for HIV treatment and care the government violates
its obligations under Art 3 to prevent inhuman or degrading treatment
and to protect them against such suffering. The government's policy
undoubtedly increases the suffering that occurs following an HIV
diagnosis and its psychological and emotional implications as
well as personal and social consequences.
85. The implications of a positive HIV diagnosis
can be even more traumatic as asylum seekers are already in a
very vulnerable state, with some of them having contracted HIV
as a result of rapes and sexual and/or physical abuse in their
country of origin, and therefore already suffering from physical
and psychological trauma, humiliation, stress and despair.
86. Under Art 3, asylum seekers have rights,
irrespective of their immigration status. The government is blatantly
violating this right by failing to protect the rights of failed
asylum seekers by providing them with free HIV treatment and care,
but also causing them to experience further suffering.
Right to life
87. There is also a strong argument that
denying HIV treatment to failed asylum seekers may be in breach
of the right to life, protected inter alia under Art 2 ECHR.
88. It is argued that the government's interference
with Art 2 ECHR with regards to failed asylum seekers' access
to HIV treatment is two-fold:
(1) By denying failed asylum seekers access
to free HIV treatment, the government is exposing those living
with HIV to a worsening of their condition, the transmission of
HIV (for pregnant women unable to access ante-natal HIV drugs),
and in the most extreme cases, might lead to death.
(2) By charging failed asylum seekers for
HIV treatment, the government deters those who cannot pay for
treatment from testing for HIV and as a result, exposing themselves
and others to harm and potentially death.
89. The government's policy on charging
for HIV-related treatment and care undoubtedly puts failed asylum
seekers' lives at risk.
90. Under Art 2 ECHR, States have both negative
and positive obligations: the negative obligation to refrain from
intentionally or unlawfully depriving an individual of their right,
and the positive obligation to protect the right to life (ie taking
appropriate measures to protect life). Also, although not absolute,
the right to life cannot be balanced against public interest and
a violation of the right to life cannot be justified on the ground
of the common good in general.
91. In X v Germany29 the European
Commission for Human Rights held that laws which allowed a person
to be evicted from his home, when this eviction may have endangered
his life due to his state of health, could give rise to a breach
of Art 2. Although the decision only referred to a possibility
("could"), it is argued that a policy that denies free
medical treatment to vulnerable groups who are living with a life
threatening disease may amount to a breach of Art 2.
92. In Osman v UK30 the ECtHR held
that "Art 2 ECHR is breached where a public authority knew
or ought to know of the existence of a real and immediate risk
and failed to take preventive measures which, judged reasonably,
might have been expected to avoid that risk". (para 116)
93. There is no cure for HIV but HIV is
preventable and treatable. Over the past few years, HIV treatments
have significantly improved and people living with HIV can now
remain healthy for several years. Those who had a poor prognosis
can see their condition improve and can go back to being in good
health again. By charging failed asylum seekers for HIV treatment
and care, the government deprives them from a chance to live a
healthy life, and endangers their lives.
94. Therefore, it is argued that denying
free HIV treatment and care to HIV-positive failed asylum seekers
can amount to a breach of Art 2 ECHR.
The Right to be Free from Discrimination
95. Discrimination is an assault on the
very notion of human rights. The principle of non-discrimination
runs through all international human rights instruments and has
inspired specialised standards such as the UN Conventions on the
elimination of discrimination against women and racial minorities.
96. As noted by the World Health Organisation:
"The observance of human rights is permeated and characterized
by the principle of freedom from discrimination".31
97. Of particular significance is the Human
Rights Committee's General Comment No 18 on non-discrimination
which is referred to in the HIV/AIDS Guidelines:
"The Human Rights Committee has confirmed
that the right to equal protection of the law prohibits discrimination
in law or in practice in any fields regulated and protected by
public authorities and that a difference in treatment is not necessarily
discriminatory if it is based on reasonable and objective criteria.
The prohibition against discrimination thus requires States to
review and, if necessary, repeal or amend their laws, policies
and practices to prescribe differential treatment which is based
on arbitrary HIV-related criteria."
98. The Commission for Human Rights as well
as the Committee on Economic, Social and Cultural Rights and the
Committee on the Rights of the Child have interpreted the term
"other status" in the non-discrimination provisions
in the relevant international human rights treaties to encompass
health status, including HIV and AIDS.
99. The principle of non-discrimination
in relation to access to HIV treatment for refugees and asylum
seekers and "other persons of concern" has been acknowledged
in the UNHCR Note on HIV/AIDS. In particular the UNHCR document
"Based on the international refugee and
human rights principles (...) and given that equal and non-discriminatory
access to ART is a vital component of ensuring the right to the
highest attainable standard of physical and mental health, host
governments which are parties to the [ICESCR and CRC] should ensure
that refugees, IDPs and other persons of concerns have access,
on an equal and non-discriminatory basis, to existing national
health and HIV programme or their equivalent. This includes access
to national ART programmes, or their equivalent, and access to
other essential drugs which are available to the host population."
100. In the UK, Art 14 ECHR is particularly
relevant following the adoption of the Human Rights Act.
101. Art 14 ECHR is not a free-standing
right to equal treatment but a derivative right. Its ambit is
confined within the rights stated in the Convention. As a result,
only claims of discrimination made in conjunction with one of
the other Convention rights can be challenged.
102. However, the "dependent"
nature of Art 14 ECHR has, to some extent, been mitigated by the
ECtHR's approach to the "ambit" test which aims at giving
Art 14 an "autonomous" existence. 32 The ECtHR has held
that there may be a violation of Art 14 in conjunction with a
substantive right even if there is no violation of that other
article taken alone. 33 There must be a relationship or a link
between Art. 14 and the other Convention right(s).
103. Although the degree of relationship
that the ambit test implies is not quite clear, the ECtHR has
held that "it is sufficient that the `subject matter' falls
within the scope of the article in question",34 or that only
a very loose relationship between Art 14 and another Convention
right is necessary to trigger Art. 14 non-discrimination provisions.
104. In practice the Court has also sometimes
refused to consider a claim under Art 14 after finding a breach
of a substantive right. 36 Yet, it has also acknowledged the intersectionality
of discrimination with another issue (eg privacy). 37
105. It is argued that the right to be from
discrimination is at the core of the issue of access to free HIV
treatment and care and that there is a strong argument that the
government's policy amounts to a breach of Art 14 (ie charging
failed asylum seekers (and illegal migrants) for HIV treatment
when no other class of persons in the UK has to pay) 38 taken
together with Art 3 and/or Art 2.
106. We also note that treatment for TB
and other sexually transmitted infections remain free; which means
that HIV is the only sexually transmitted infection excluded from
the exemption rule. There is therefore an argument that the policy
may amount to discrimination on grounds of HIV and national origin
and/or immigration status (ie undocumented or illegal immigrant,
failed asylum seeker).
107. Interference with Art 14 ECHR can be
justified if the distinction has a reasonable and objective justification.
The existence of such a justification relies on the principle
of proportionality and must be assessed in relation to the aim
and effects of the measure under consideration and the means used
to achieve it.
108. The government's justification for
introducing the new charging regime has been because of the "significant
amount of abuse going on" and alleged "health tourism".
As examined in paras 69-71, the government's allegations do not
rest on any empirical evidence. In relation to the specific assumption
of "health tourism" in the context of HIV, we note that
there was extensive evidence provided by NGOs when the issue was
considered by the Health Select Committee in its Third Report
(2005). 39 The Committee noted:
"Despite John Hutton MP's conviction that
`there is a significant amount of abuse going on', no evidence
exists to objectively quantify the scale of abuse, either in relation
to HIV or more generally. The Department's original consultation
(...) gives no specific examples of people migrating to the UK
as `health tourists' to use NHS services for HIV or for any other
chronic condition. In fact we received some evidence which strongly
refuted claims that HIV-infected individuals are coming to the
UK to cynically exploit free access to medical care. Memoranda
argued that HIV+ people who were infected outside the UK typically
sought access to medical care at a late stage, when if they had
come to the UK with the express purpose of obtaining medical care
it would seem logical for them to seek testing and treatment at
the earliest possible opportunity. The Terrence Higgins Trust
conducted a small piece of research on a population of 60 HIV+
migrants who were recent users of THT services. Approximately
3% (two people in total) had been diagnosed prior to entering
the UK. Only 8% were diagnosed with HIV within three months of
entry to the UK. In all at least 75% waited more than nine months
after entering the UK before having an HIV test. One third of
people in the cases examined did not have a test until more than
18 months after entry." (paras 106-108)
109. In its concluding paragraph, the Committee
"[n]either the Department nor any other
interested parties have been able to present us with any evidence
suggesting that that this is currently the case, or that the introduction
of these restrictions on free treatment will actively discourage
people from entering or remaining in this country illegally. What
little evidence exists in this area in fact seems to suggest that
HIV tourism is not taking place. It suggests that HIV+ migrants
do not access NHS services until their disease is very advanced,
usually many months or even years after their arrival in the UK,
which would not be the expected behaviour of a cynical `health
tourist' who had come to this country solely to access free services."
110. In terms of costs, which is one of
the arguments put forward by the government to introduce charging
for HIV treatment, the Committee said:
"The Department's consultation on changes
to charging rules for overseas visitors suggested that cost-saving
was a key reason for reviewing the regulations. We were therefore
astonished that, by the Department's own admission, these changes
have been introduced without any attempt at a cost-benefit analysis,
and without the Department having even a rough idea of the numbers
of individuals that are likely to be affected. While generating
even small amounts of savings for the NHS might appear to be worthwhile,
in the case of HIV treatment we have received powerful evidence
that it would in fact be more cost-effective to provide free HIV
treatment to all, as, without treatment, HIV+ individuals living
in this country without proper authority are likely to place a
far greater burden on NHS resources." (para 138)
111. The detrimental effects of the introduction
of the new charging regime in relation to HIV (but also other
health conditions) have been well documented. In particular the
impact of charging failed asylum seekers for HIV treatment and
care is especially worrying with wide implications on public health.
A summary of the implications in terms of financial costs but
also in terms of HIV transmission and impact on public health
is provided in the Committee's report:
"[t]he cost of not treating HIV is also
very high, perhaps even higher than the cost of treating it. Without
treatment, those with HIV are likely to become seriously ill ever
more frequently, accessing treatments through A&E departments
on a `revolving door' basis. While those ineligible for free HIV
treatment would be charged for any subsequent inpatient treatment
if they were admitted to hospital, initial treatment in an A&E
department would be free (...)
Considering the situation from a purely pragmatic
point of view, an NHS Trust could in fact end up losing more money
through its obligation to provide `immediately necessary' treatment
to an HIV+ person who has developed a life-threatening problem,
and who is subsequently unable to meet the charges for this treatment,
than if they had provided free ART to that person to prevent them
from becoming ill in the first place (...)
[i]ntroducing charges for HIV treatment may in
fact contribute to onward transmission, both because charges may
act as a deterrent to testing for people who cannot afford treatment
in the event of a positive result, and because untreated individuals
are more infectious than those on treatment whose viral load is
controlled. In its cost-benefit analysis of the changes to regulations
governing access to free NHS treatment for overseas visitors,
the Department must also take into account the potential costs
associated with increased onward transmission of HIV.
Coupled with increasing confusion regarding eligibility
for HIV treatment even amongst those who are eligible, and fear
amongst migrant communities that if, in future, they attend health
services they will be questioned about their immigration status,
this strongly suggests that the introduction of charges for HIV
treatment will increase the number of HIV+ people living in this
country who are unaware of their infection, in direct contradiction
of the Government's target to reduce the number of undiagnosed
HIV infections. An increase in the numbers of people who are unaware
of their HIV+ status will pose a serious and escalating threat
to public health." (paras 134-52)
112. In conclusion we believe that the government's
policy of charging failed asylum seekers for HIV treatment and
care violates Art 14 ECHR, in conjunction with Art 3 and Art 8.
Facts and Figures about the Detention of Asylum
Seekers in the UK
113. Home Office figures show that at 24
June 2006, 1,825 people were detained in the UK under Immigration
Act powers. 40 Furthermore:
90% of immigration detainees were
male and 15 people detained solely under Immigration Act powers
were recorded as being less than 18. 10 of these had been in detention
for less than one month, and the remainder between one and two
At least 80 asylum-seeking children
were held in detention for up two months last year. 1,660 were
held at Immigration Service Removal Centres, 45 at Immigration
Short Term Holding Facilities and 120 at prison establishments.
Of the 7,035 adults recorded as leaving
detention during the first quarter of 2006, 3,500 (50%) had been
detained for 7 days or less, 750 (11%) for 8 to 14 days, 1,055
(15%) for 15 to 29 days and 975 (14%) for one month to less than
two months. 30 adults had been detained for one year or more.
114. Amnesty International estimates that
at least 27,000 and 25,000 people who had sought asylum at some
stage were detained in 2003 and 2004 respectively for some period
of time. 43
115. It is estimated that the government
currently detains more than 2,000 children, including babies,
in immigration detention centres every year. 44 Current UK policy
and practice means that children can and do remain in detention
for lengthy periods, up to 268 days. 45
116. Eight asylum seekers in detention committed
suicide between January 2003 and January 2006. Thirty-four asylum
seekers have taken their own life since January 2004; six of these
were detained in ordinary prisons.
UK Law and Policy on Detention of Asylum Seekers
117. Under Immigration Act powers, it is
the executive who authorises the detention of people who have
sought asylum. No judicial authorisation is required and there
is no prompt and automatic judicial oversight of the decision
to detain, nor are there automatic judicial reviews of the continuance
118. Under the Immigration Act 1971 (as
amended), immigration officers and Home Office officials have
powers to detain those who are subject to immigration control,
including asylum-seekers and people whose asylum claims have been
dismissed. There are no statutory criteria for detention. The
detention is indefinite and only subject to internal administrative
119. Stated UK policy allows for detention
to be used to prevent absconding; to establish identity; to remove
people from the UK at the end of their asylum or immigration case;
and for the purposes of making a decision on a claim for asylum
deemed to be straightforward and capable of being decided quickly.
There is no upper or lower age for being detained as asylum-seekers
120. Under the Asylum and Immigration Tribunal
(Fast Track Procedure) Rules 2005, some applicants are detained
immediately (usually on the basis of their nationality) and sent
to Harmondsworth or Yarls Wood where their claim is "fast
tracked". They have a right to appeal, although this is again
121. There are guidelines for immigration
detention contained in the Home Office instructions, the Operational
Enforcement Manual, and the statutory Detention Centre Rules.
122. The Home Office Operating Enforcement
manual (OEM) which contains guidance and information for Immigration
Service officers dealing with enforcement (after-entry) immigration
matters, states that detention must be used sparingly, and for
the shortest period necessary.
123. The OEM includes a section on factors
that influence a decision to detain (excluding pre-decision fast
1. There is a presumption in favour of temporary
admission or temporary release.
2. There must be strong grounds for believing
that a person will not comply with conditions of temporary admission
or temporary release for detention to be justified.
3. All reasonable alternatives to detention
must be considered before detention is authorised.
4. Once detention has been authorised, it
must be kept under close review to ensure that it continues to
5. Each case must be considered on its individual
124. It also states that "certain persons
are normally considered suitable for detention in only very exceptional
circumstances, whether in dedicated IS accommodation or elsewhere.
Others are unsuitable for IS detention accommodation because their
detention requires particular security, care and control."
125. The manual also lists people who are
"normally considered suitable for detention in only very
exceptional circumstances, whether in dedicated IS detention accommodation
unaccompanied children and persons
under the age of 18;
the elderly, especially where supervision
pregnant women, unless there is the
clear prospect of early removal and medical advice suggests no
question of confinement prior to this;
those suffering from serious medical
conditions or the mentally ill;
those where there is independent
evidence that they have been tortured; and
people with serious disabilities.
126. The manual does not provide a definition
of "very exceptional circumstances" and as will be examined
below, there is evidence that very often, those groups are detained.
The manual provides a list of people who are "usually"
unsuitable for the detained fast track, including:
unaccompanied minors (always unsuitable,
see 38.9 Young Persons);
age dispute cases. The policy of
detaining age dispute cases for the purposes of Fast Tracking
was updated in February 2006;
disabled applicants, except the most
pregnant females of 24 weeks and
any person with a medical condition
which requires 24 hour nursing or medical intervention; and
anybody identified as having an infectious/contagious
127. The Detention Centre Rules 2001 also
contain guidance on the treatment of people with special illnesses
and conditions. We note in particular Rule 35(1) which states:
"The medical practitioner shall report to
the manager on the case of any detained person whose health is
likely to be injuriously affected by continued detention or any
conditions of detention."
128. Finally the Detention Services Operating
Standards introduced in 2002 provide information on the standard
of healthcare in detention centres.
129. Again as will be examined below, there
is a wide gap between policy and practice.
Detention of Asylum Seekers under International
130. The right to liberty underpins the
right to asylum and the presumption against detention of asylum
seekers. Sources of international law governing detention include
the UDHR, the Refugee Convention and its Protocol, the ICCPR,
the CRC, and the ECHR.
131. Art 31 of the Refugee Convention specifically
prohibits the imposition of penalties on refugees who have entered
or are present in a country illegally. This prohibition applies
to refugees who have arrived "directly from a territory where
their life or freedom was threatened . . . or are present in their
territory without authorization, provided they present themselves
without delay to the authorities and show good cause for their
illegal entry or presence." (Art 31(1)). The Convention further
provides that "the movements of such refugees" shall
not be subject to "restrictions other than those which are
necessary." (Art 31(2))
132. Art 3 UDHR provides that: "Everyone
has the right to life, liberty and the security of person."
133. Art 9 UDHR further states: "No
one shall be subjected to arbitrary arrest, detention or exile."
134. Art 9(1) ICCPR states that: "Everyone
has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention (...)".
135. Article 37(b) CRC states that: "No
child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be used
only as a measure of last resort and for the shortest appropriate
period of time (...)"
136. Art 5 (1) ECHR asserts that everyone
has the right to liberty and security of person and that the deprivation
of liberty is only allowed in limited cases and in accordance
with a procedure prescribed by law. The exceptions include "(f)
the lawful arrest or detention of a person to prevent his effecting
an unauthorised entry into the country or of a person against
whom action is being taken with a view to deportation or extradition",
which is the only one relevant in the immigration context.
137. Although non-binding, the UNHCR intergovernmental
Executive Committee of the Programme and the UNHCR Detention Guidelines
are regarded as authoritative in the field of refugee rights.
They both condemn the use of detention of asylum seekers and call
for alternatives to detention.
138. The UNHCR Detention Guidelines state:
"The detention of asylum-seekers is, in
the view of UNHCR inherently undesirable. This is even more so
in the case of vulnerable groups such as single women, children,
unaccompanied minors and those with special medical or psychological
needs. Freedom from arbitrary detention is a fundamental human
right and the use of detention is, in many instances, contrary
to the norms and principles of international law." (para
139. More specifically, the Detention Guidelines
provide that "as a general principle asylum seekers should
not be detained". Guideline 2 further states:
According to Article 14 of the Universal Declaration
of Human Rights, the right to seek and enjoy asylum is recognised
as a basic human right. In exercising this right asylum-seekers
are often forced to arrive at, or enter, a territory illegally.
However the position of asylum-seekers differs fundamentally from
that of ordinary immigrants in that they may not be in a position
to comply with the legal formalities for entry. This element,
as well as the fact that asylum-seekers have often had traumatic
experiences, should be taken into account in determining any restrictions
on freedom of movement based on illegal entry or presence."
140. Guideline 3 sets out the exceptional
Grounds for Detention:
"Detention of asylum-seekers may exceptionally
be resorted to for the reasons set out below as long as this is
clearly prescribed by a national law which is in conformity with
general norms and principles of international human rights law.
These are contained in the main human rights instruments. There
should be a presumption against detention. Where there are monitoring
mechanisms which can be employed as viable alternatives to detention,
(such as reporting obligations or guarantor requirements [see
Guideline 4]), these should be applied first unless there is evidence
to suggest that such an alternative will not be effective in the
individual case. Detention should therefore only take place after
a full consideration of all possible alternatives, or when monitoring
mechanisms have been demonstrated not to have achieved the lawful
and legitimate purpose."
141. Guideline 4 provides for alternatives
to detention, including: monitoring (reporting and residency)
requirements; provision of a guarantor/surety; release on bail;
and open centres.
Conditions of Detention of Asylum Seekers under
142. Under international law, the fundamental
principle underlying the detention or imprisonment of a person
is that they shall be treated in a humane manner and with respect
for the inherent dignity of the human person.
143. As enshrined in Art.10 ICCPR, "all
persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person".
This implies not only the right not to be subjected to torture
or to cruel, inhuman or degrading treatment or punishment, but
also that migrants deprived of their liberty should be kept in
conditions that take into account their status and needs.
144. General Comment 21 on Art 10 provides
"Article 10, paragraph 1, imposes on States
parties a positive obligation towards persons who are particularly
vulnerable because of their status as persons deprived of liberty,
and complements for them the ban on torture or other cruel, inhuman
or degrading treatment or punishment contained in article 7 of
the Covenant. Thus, not only may persons deprived of their liberty
not be subjected to treatment that is contrary to article 7, including
medical or scientific experimentation, but neither may they be
subjected to any hardship or constraint other than that resulting
from the deprivation of liberty; respect for the dignity of such
persons must be guaranteed under the same conditions as for that
of free persons. Persons deprived of their liberty enjoy all the
rights set forth in the Covenant, subject to the restrictions
that are unavoidable in a closed environment." (para 3)
145. General Comment No. 15 on the position
of aliens under the Covenant also states that "if lawfully
deprived of their liberty, [aliens] shall be treated with humanity
and with respect for the inherent dignity of their person".
146. The Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment, the
Standard Minimum Rules for the Treatment of Prisoners, the United
Nations Rules for the Protection of Juveniles Deprived of their
Liberty and the UNHCR Detention Guidelines also provide an extensive
list of guarantees for the protection of the human dignity of
persons, including migrants, deprived of their liberty. Despite
their non-binding nature, they reflect internationally recognised
147. General Recommendation Number 30 of
the Committee on the Elimination of Racial Discrimination recommends
that States must "[e]nsure (...) that conditions in centres
for refugees and asylum seekers meet international standards".
148. Art 37(c) CRC also establishes that
every child deprived of liberty shall be treated with humanity
and respect for the inherent dignity of the human person, and
in a manner which takes into account the needs of persons of his
or her age.
149. The detention of vulnerable groups
such as women, children and asylum seekers with health needs has
been considered by both non-governmental organisations and the
150. Most of UN guidelines dealing with
HIV in the context of detention of asylum seekers deal with the
issue of detention on grounds of HIV; which is not at stake in
151. However, the detention of vulnerable
groups, including asylum seekers with healthcare needs, has been
considered in several documents. In particular, Guideline 5 of
the UNHCR Detention Guidelines deals with the detention of vulnerable
persons and states:
"Given the very negative effects of detention
on the psychological well being of those detained, active consideration
of possible alternatives should precede any order to detain asylum-seekers
falling within the following vulnerable categories:
Unaccompanied elderly persons.
Torture or trauma victims.
Persons with a mental or physical disability.
In the event that individuals falling within
these categories are detained, it is advisable that this should
only be on the certification of a qualified medical practitioner
that detention will not adversely affect their health and well
being. In addition there must be regular follow up and support
by a relevant skilled professional. They must also have access
to services, hospitalisation, medication counselling etc should
it become necessary."
152. The Detention Guidelines also state
that the detention of asylum seeker women requires them to be
accommodated separately from male asylum seekers unless they are
close family relatives. Guideline 8 further provides that "[as]
a general rule the detention of pregnant women in their final
months and nursing mothers, both of whom may have special needs,
should be avoided (...) [Women] should have access to gynaecological
and obstetrical services".
153. The Guidelines further call for "regular
follow-up and support by a relevant skilled professional"
for those detained, and "access to services, hospitalization,
medication, counselling, etc., should it become necessary."
(Principle 24) The Guidelines emphasise that all detained asylum
seekers must have "the opportunity to receive appropriate
medical treatment and psychological counselling where appropriate."
154. International law also recognises that
health professionals who provide care for detainees are bound
by significant ethical obligations. These professionals "have
a duty" to protect detainees' "physical and mental health"
and to provide "treatment of disease of the same quality
and standard as is afforded to those who are not imprisoned or
155. Commenting on the detention of asylum
seekers in the UK, the UNHCR has stated:
"Victims of torture, persons with a mental
or physical disability, unaccompanied elderly persons, families
with children, and other individuals with similarly vulnerable
backgrounds and characteristics are also of concern to UNHCR in
the context of detention. In the event that individuals falling
within these categories are detained, UNHCR's view is that this
should only be on the certification of a qualified medical practitioner
that detention will not further adversely affect their health
and well-being." 47
156. Principles 24-26 of the Body of Principles
for the Protection of All Persons under Any Form of Detention
or Imprisonment further provide that:
"A proper medical examination shall be offered
to a detained or imprisoned person as promptly as possible after
his admission to the place of detention or imprisonment, and thereafter
medical care and treatment shall be provided whenever necessary.
This care and treatment shall be provided free of charge."
"A detained or imprisoned person or his
counsel shall, subject only to reasonable conditions to ensure
security and good order in the place of detention or imprisonment,
have the right to request or petition a judicial or other authority
for a second medical examination or opinion."
"The fact that a detained or imprisoned
person underwent a medical examination, the name of the physician
and the results of such an examination shall be duly recorded.
Access to such records shall be ensured. Modalities therefore
shall be in accordance with relevant rules of domestic law."
Detention of HIV-Positive Asylum Seekers in the
157. The conditions of detention of asylum
seekers and migrants in UK have been severely criticised: health
deterioration, disrupted medical treatment, failure to facilitate
access to external secondary health services, unidentified health
needs, lack of follow-up, and continuity of care are some of the
main issues which have been raised.
158. We note that the issue of detention
of asylum seekers in the UK was criticised by the HRC in 2001.
In its concluding observations, the Committee expressed concern
that "asylum seekers have been detained in various facilities
on grounds other than those legitimate under the ICCPR, including
reasons of administrative convenience."
159. The UNHCR has also emitted serious
concerns about asylum seekers' detention in the country:
"UNHCR understands that under current legislation
any asylum seeker, including minors and other vulnerable persons,
may be detained at any stage of their asylum claim, that there
is no maximum period an individual may spend in detention, and
that continued detention of any one individual is subject to internal
administrative review conducted by IND caseworkers and immigration
officers only. UNHCR recognises that an individual is free to
apply for bail at any time during their detention, but also notes
that unless an application for bail is heard in court, an individual's
detention and the reasons behind it are not subject to judicial
UNHCR further notes the continued practice of
detaining vulnerable individuals. From Home Office statistics,
UNHCR understands that on 26 June 2004, 60 children were being
held in UK detention centres. Of these, 5 had already spent between
15 and 29 days in detention, and another 5 between one and two
months. Available Home Office statistics further reveal that on
25 June 2005, 70 of those who were detained solely under Immigration
Act powers were recorded as being under 18 years old. Of those,
45 had been in detention for 14 days or less, 10 for between 15
and 29 days, and the remainder between one and two months."
160. There has not been any specific research
and/or investigation into the detention of HIV-positive asylum
seekers but their situation has been highlighted in several reports.
Some specific reports have provided medical evidence on the inadequacy
of conditions of detention for asylum seekers with healthcare
needs and the detrimental impact of detention, including in the
context of HIV and AIDS.
161. "The Health and Medical Needs
of Immigration Detainees in the UK: MSF's Experiences" was
published by Médecins Sans Frontie"res (MSF) in November
2004 and reports the findings of one of their doctors' assessment
in April and May 2004 of 13 adults and three children detained
under the Immigration Act. The detainees were held in five immigration
removal centres, an immigration holding centre, a young offenders'
centre, and two prisons. The doctor had been engaged by Bail for
immigration Detainees (BID) in an attempt to apply for the release
of those detainees on bail on health grounds. The report highlighted
MSF's concerns about the health status of the individuals they
medically examined and the apparent lack of mechanisms in place
to ensure that members of this vulnerable population are afforded
the medical care and protection they need. It also underlined
the failure to treat basic physical health problems, including
failure to refer an HIV-positive detainee at the symptomatic stage
of infection urgently back to a genito-urinary clinic, a breast
lump, a cough which may have indicated TB, and genito-urinary
check for sexually transmitted infections post rape. Finally the
report suggested that despite guidelines stating that an individual
with a serious medical condition or mental health problems should
only be detained in exceptional circumstances, there was no systematic
process to identify and release such people. Nor was there any
system of regular health review for those detained:
"One detainee we visited had been diagnosed
with symptomatic HIV infection and was being considered for antiretroviral
treatment at the time he/she was detained. However, we noted that
despite awareness of his/her condition and need for referral by
a variety of detention health care staff (as documented in the
medical notes), referral back to his/her local hospital outpatient
department had not been made by the detention health centre even
after several months. MSF assisted in facilitating this referral."
"In light of the fact that the detention
health centre was clearly not able to provide appropriate care
for symptomatic HIV positive detainees, MSF felt strongly that
it was inappropriate to detain such an individual. This echoes
the findings of a recent All-Party Parliamentary Group on AIDS
who concluded that `the UK government should not detain, solely
for immigration purposes, individuals with serious communicable
diseases such as HIV, if it cannot provide for their care inside
"[f]or those individuals who required more
than just a basic level of care, weaknesses were clearly apparent
in the system to ensure an appropriate level of care and follow
up. Where there are insufficient facilities and resources to ensure
that a detainee with a particular medical condition receives appropriate
care, for example HIV care and treatment, the individual should
not be detained."
162. "Fit to be detained? Challenging
the detention of asylum seekers with health needs" was
published by BID in May 2005 and described what happened to the
bail applications for the 16 asylum seekers after the medical
reports. In particular the report mentions that although the MSF
doctor stated that continued detention would be likely to result
in further deterioration of the individual detainee's health in
each of his individual medical assessment report, one detainee
was released within five days and another after 14 days, five
were detained a further 30-60 days and three for between 70 and
163. The report's key findings unequivocally
prove that the detention process in the UK fails to comply with
the most basic international principles. Although those findings
only refer to the specific case of the 16 individuals, it is argued
that it is most likely that there is a systemic problem of failure
to comply with guidelines and other recommendations.
The main issues raised in the report are: 49
Long periods of detention: Despite instructions
that those with serious illness "are not normally considered
suitable for detention", such people are detained for long
Inadequate internal review mechanisms:
Internal mechanisms for reviewing the necessity and appropriateness
of maintaining detention do not appear to be effective in ensuring
that ill detainees are released, even in cases where detention
is exacerbating their condition and resulting in deteriorating
mental or physical health.
Inadequate rules: The Detention Centre
Rules and Operating Standards are not effective in protecting
the needs and rights of detainees, in particular the more vulnerable:
women, children, age-disputed children, those with serious mental
and/or physical health problems.
Little weight is given to health factors:
The Immigration Service have stated that "Evidence that
a person has been a victim of torture, or has a history of physical
or mental ill health, are clearly cited as negative factors influencing
a decision to detain and would weigh against deciding to detain.
There may, of course, be countervailing factors present in a case
such as to justify detention." It would appear that the "countervailing
factors" in these cases were given greater weight than the
evidence of ill health. In some cases, even a medical assessment
clearly stating that health would be likely to deteriorate further
was not enough evidence to "weigh against" maintaining
Failure to employ alternatives to detention:
It appears that there is a presumption in favour of maintaining
detention and a reluctance to actively consider alternatives to
detention, such as reporting requirements, at an early stage.
Restricted access to legal representation
to challenge detention: Detainees with health problems are
struggling to access legal representation to challenge their detention,
or to progress their substantive asylum or immigration case. They
are remaining in detention for long periods without their detention
being independently reviewed.
Detention on arrival and where no history
of non-compliance with immigration control: Detention is being
used for people with health problems who have claimed asylum either
on arrival, or shortly afterwards, and have always maintained
contact with the Immigration Service prior to being detained.
Maintaining contact on release: The majority
of detainees released from detention maintained contact with the
Immigration Service calling into question the need to detain them
in the first place.
Adjudicators disregarding health status in
some bail applications: In some bail applications, it would
appear that Adjudicators are not taking medical evidence into
account or are not being presented with relevant information regarding
health status by the Immigration Service.
164. "Migration and HIV: Improving
Lives in Britain" published by the All Party Parliamentary
Group on AIDS (APPGA) in 2003 provides the most comprehensive
overview of the issue of HIV-positive asylum seekers in detention
or held in removal centres. The report provides unequivocal examples
of the inadequacy of detaining HIV-positive asylum seekers and
worrying instances of HIV transmission.
165. The report notes:
Detrimental impact of entry into a detention
facility: If an individual is detained after their arrival
and short-term settlement in the UK, their medical notes usually
do not follow them into detention, they lose contact with their
healthcare providers and do not have access to HIV specialist
care. Their HIV treatment is taken away from them upon entry into
a facility and they are not given any medical exam until 24 hours
have elapsed. This means that they can miss access to his/her
HIV treatment for up to 24 hours, heightening the likelihood of
future drug resistance.
Absence of adequate arrangements for medical
treatment: HIV-positive detainees are not able to manage their
own medical treatment such as taking it the specified required
times because of detention arrangements (eg meal times).
Lack of communication between detention centres
and community healthcare services: This was highlighted in
the HM Inspectorate of Prisons' 2003 report on the "Inspection
of Five Immigration Service Custodial Establishments".
Difficulty in attending outside medical appointments
and/or being handcuffed during the appointment: The report
notes that medical appointments may be cancelled either for logistical
or practical reasons; detainee with HIV was taken to his medical
appointment in handcuffs and his blood test was carried out while
he was wearing the handcuffs.
Absence of counselling or psychological services:
Detainees who are tested for HIV do not receive adequate pre-
and post-test counselling when the test is done on-site. The issue
of informed consent has also been raised with detainees being
traumatised by what happened in their country and then arrested
and offered a test without being given appropriate info or being
given the time to think about it.
166. The Report concludes:
"The Government should not place people
with serious communicable diseases, such as HIV, in detention
or removal centres for immigration purposes where it is not possible
to provide suitable medical care for them."
167. We would also like to highlight that
several reports by the HM Inspectorate of Prisons have included
evidence of the failure of detention facilities to meet the healthcare
needs of detainees, that it be for short or longer periods. Issues
like the lack of routine professional soon after arrival leaving
some health problems undetected, the use of handcuffs, the lack
of contracted healthcare input for local GPs or nurses, healthcare
professionals only called in an emergency with staff required
to make a judgement on what constituted an emergency themselves
were mentioned in the "Report on four STHFs (Luton, Waterside
Court, Portsmouth, Stansted) May 2005January 2006".
The lack of communication between detention centres and community
healthcare professionals, the absence of specialised care, the
lack of shared medical records between the different centres and
GPs, the removal of medication on arrival as blanket policy, and
the reluctance to use interpreters or language line making it
difficult for detainees to discuss their health concerns and reveal
health issues that were relevant to their asylum claims, were
issues reported in "Tinsley House, Haslar, Oakington,
Campsfield House and Lindholme (an Inspection of five IRCs)".
168. Whilst those reports provide extensive
evidence that the government is failing to comply with international
guidelines on the detention of asylum seekers including those
living with HIV, it is argued that in some instances the treatment
of asylum seekers amounts to a breach of international human rights
169. In the specific context of HIV, there
is compelling evidence that detention has a detrimental impact
on HIV-positive detainees' ability to access medical care. This
was for example illustrated by MSF's case of the individual at
the symptomatic stage of infection not being referred to his local
170. Art 12 ICESCR has been extensively
examined above in the context of NHS charging system. We therefore
refer to paras 57-74 of this submission. However, we wish to repeat
that under Art 12 ICESCR, States have core obligations which include
ensuring that all individuals, especially those belonging to vulnerable
or marginalised groups, have access to health facilities and failure
to comply with this obligation amounts to a breach of Art 12.
171. There is also a strong argument that
failure to take the necessary steps to ensure that HIV-positive
detainees can take their HIV medication and the use of blanket
policies on medication removal upon entry into a detention centre
interfere with the right to be free from inhuman or degrading
treatment guaranteed inter alia by Art 3 ECHR.
172. Art 3 in the context of access to HIV
treatment has been examined above. However, we would like to bring
to the attention of the Committee the following case that is relevant
to the specific issue of healthcare in detention:
173. In McGlinchey and Others v UK50
the ECtHR found a violation of Art 3 ECHR and held that "[T]he
state must ensure that a person is detained in conditions that
are compatible respect for human dignity, that the manner and
method of the detention do not subject her to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention and that, given the practical demands of imprisonment,
her health and well-being are adequately secured by, among other
things, providing her with requisite medical assistance (...)".
174. States' duty of care for detainees
had been previously acknowledged by the ECtHR on several occasions,
including in Algur v Turkey: 51
"[W]ith regard to Article 3, the State is
responsible for and under a duty to protect all persons in custody,
as they are in a vulnerable position (...)" (at para 44)
175. We also note that the HRC found in
Steve Shaw v Jamaica52 and Desmond Taylor v Jamaica53
that the treatment of detainees, which included a lack of provision
for healthcare and medical care and medical facilities constituted
a breach of Art 10 (1) ICCPR which states that "[a]ll persons
deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person".
176. There has been extensive domestic case
law on the treatment of asylum seekers in detention centres. We
would like to highlight the High Court's recent decision in D
& K v Secretary of State for the Home Department. On 22
May 206, the Court found a "persistent and sustained failure
to give effect to important aspects of the Detention Centre Rules
and publicly to highlight a departure from published policy"
by the Home Office to abide by the legal requirement to ensure
that detainees in immigration detention centres are medically
examined within 24 hours of their detention. This failure led
to the unlawful detention of two asylum seekers at Oakington Removal
Centre in May 2005, who should have been assessed as unsuitable
for detention as there was medical evidence that they had been
tortured in their countries of origin.
177. It is argued that the government's
policy on detention of asylum seekers is not in line with international
and regional law and standards, including the UNHCR Detention
178. We note that despite concerns from
the international community such as the HRC and the UNHCR about
the detention policy and extensive evidence of its detrimental
impact particularly on vulnerable people, such as children, women
and those with healthcare needs, the government is blatantly disregarding
the most fundamental principles that govern the treatment of asylum
seekers in international law and policy.
Facts and Figures about Dispersal in the UK
The "dispersal scheme"
introduced under the 1999 Immigration and Asylum Act.
The national dispersal policy under
which newly arrived asylum seekers are dispersed across the UK
started in April 2000.
One of the main purposes of government
arrangements was to provide a statutory basis for dispersing asylum
seekers away from hard pressed local authorities in London and
the South East.
The agency in charge of implementing
the dispersal policy is the UK National Asylum Support Service.
179. The issue of healthcare for dispersed
asylum seekers, especially in the context of HIV has been widely
The detrimental impact of dispersing
HIV-positive asylum seekers was also acknowledged in the APPGA's
inquiry into HIV and Migration in May 2003.
An article published in the British
Medical Journal in 2004 further highlighted the issue of dispersal
of HIV-positive asylum seekers by providing the findings of a
national survey of UK healthcare providers. 54 The research aimed
at finding out the experiences and opinions of doctors working
in genitourinary medicine in relation to the dispersal of HIV-positive
asylum seekers. The main findings of the study were that most
doctors who treat HIV positive asylum seekers have unsuccessfully
contested dispersal and that doctors believe that dispersal is
disruptive, may compromise HIV care, and may lead to increased
In 2006, the National AIDS Trust
published a report on the dispersal of asylum seekers living with
180. In December 2005, NASS introduced a
new policy on the dispersal of asylum seekers with healthcare
needs. The new policy states that a delay must be considered when
dispersing HIV-positive asylum seekers, and that the treating
clinician must be satisfied that continuing treatment has been
organised in the patient's destination area. It also states that
the provider of accommodation in the destination area has an obligation
to ensure that HIV-positive asylum seekers are registered with
181. We have welcomed this new guidance
which should significantly improve the standard of care and treatment
of HIV-positive asylum seekers. And therefore we will not consider
this issue further in this submission.
182. However, it is now important that NASS
implementation of the new policy be adequately monitored and any
gaps identified and remedied.
UK Law and Policy on Failed Asylum Seekers' Removal
183. An applicant can make a claim under
the Refugee Convention. If the claim is successfully granted,
they are then classified as a refugee and are entitled to remain
in the UK indefinitely and qualify for all rights as a British
national. They are usually granted indefinite leave to remain
184. Humanitarian protection may be raised
under Art.3 ECHR (which will be the main focus of this section)
and is granted to asylum seekers if it is accepted that they face
a serious risk in their home country. Humanitarian protection
normally allows the asylum seeker leave to stay in the UK for
five years in the first instance.
185. If someone does not qualify for refugee
status or humanitarian protection, they may still be allowed to
stay under "discretionary leave". This is only granted
in special circumstancesespecially for unaccompanied asylum-seeking
children (UASC) who cannot be returned to their country of origin.
186. Under UK immigration law, asylum applicants
whose applications have been rejected and who have no appeal outstanding
have no legal right to remain in the United Kingdom (administrative
187. The Home Office's Immigration and Nationality
Directorate is responsible for deciding asylum applications and
for returning failed applicants. Failed applicants are expected
to leave the United Kingdom voluntarily or be subject to removal
188. Since July 2006, Statement of Changes
in Immigration Rules (HC 1337) outlines the changes in the rules
laid down regarding the practice to be followed in the administration
of the Immigration Act 1971 for regulating entry into and the
stay of persons in the UK. The changes are mainly intended to
balance the need for deportation for the "public good"
against "compassionate circumstances" for the individual
subject to a deportation procedure. However, it does not describe
what the public good is, leaving that open to interpretation on
a case-by-case basis. 56
189. This Statement amends para 364 of the
Immigration Rules to make it clear that where a person is liable
to deportation then the presumption shall be that the public interest
requires deportation and that it will only be in exceptional circumstances
that the public interest in deportation will be outweighed in
a case where it would not be contrary to the ECHR and the Refugee
Convention to deport:
"Subject to paragraph 380, while each case
will be considered on its merits, where a person is liable to
deportation the presumption shall be that the public interest
requires deportation. The Secretary of State will consider all
relevant factors in considering whether the presumption is outweighed
in any particular case, although it will only be in exceptional
circumstances that the public interest in deportation will be
outweighed in a case where it would not be contrary to the Human
Rights Convention and the Convention and Protocol relating to
the Status of Refugees to deport. The aim is an exercise of the
power of deportation which is consistent and fair as between one
person and another, although one case will rarely be identical
with another in all material respects. In the cases detailed in
paragraph 363A deportation will normally be the proper course
where a person has failed to comply with or has contravened a
condition or has remained without authority."
Asylum Seekers' Deportation under International
190. The principle of non-refoulement is
codified in its best-known form in the Refugee Convention. Major
UN human rights treaties also prohibit the forcible return of
persons to countries where they may be exposed to torture or cruel,
inhuman or degrading treatment or punishment.
191. The Convention against Torture (CAT)
"No State Party shall expel, return (`refouler')
or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
to torture." (Art 3)
192. The ICCPR and the ECHR do not contain
any explicit provisions on the topic. However, the HRC and the
ECtHR have both interpreted the ban on refoulement as being inherent
in Art 7 of the ICCPR and Art 3 ECHR that prohibit torture and
inhuman and degrading treatment and punishment. 57
193. The European Court of Human Rights
further held in Soering v UK58 that Art 3 prohibits the
extradition of a person who is threatened with torture or inhuman
or degrading treatment or punishment in the requesting country.
Extradition in such circumstances would, according to the Court,
"plainly be contrary to the spirit and intendment of the
Article" and would "hardly be compatible with the underlying
values of the Convention".
194. Most importantly, derogation from Art
3 CAT, Art 7 ICCPR or Art 3 ECHR not justifiable under any circumstances.
195. There are no specific guidelines or
instruments on the specific issue of deportation of HIV-positive
asylum seekers within the context of access to healthcare in the
country of return but it is argued that the guidelines on the
treatment of asylum seekers and on the right to health are relevant
in this context.
196. The reference case in relation to the
deportation of a person living with HIV in the UK is D v UK59
where the Court considered the issue for the first time. In this
case, the Court held that if the manwho was dying of AIDS-related
complicationswas deported to the Caribbean island of St
Kitts, it would amount to "inhuman treatment" and violate
Art 3 ECHR.
197. "D" had attempted to enter
the UK as a visitor but permission was refused when he was found
to be in possession of large quantities of cocaine. He was convicted
of drug importation offences and received a sentence of six years'
imprisonment. In 1994, while in prison, D was diagnosed with AIDS.
In January 1996, he was released and placed in immigration detention
pending his removal to St Kitts. D applied for permission to remain
in the UK on compassionate grounds, as his deportation to St Kitts
would entail loss of the medical treatment he was receiving. His
request was refused on the grounds that Immigration Department
policy did not provide a right for a person with AIDS to remain
in the UK exceptionally, when treatment was being carried out
at the public expense under the National Health Service. D also
lost his case in the Court of Appeal.
198. D's case reached the European Court
of Human Rights where he claimed that his deportation to a place
where no adequate facilities necessary to his condition were available
would shorten his life and deprive him of his right to life, in
violation of various articles of the Convention. Because he had
no accommodation, no money and no access to social support, D
argued that his death would not only be accelerated but that it
would come about in inhuman and degrading conditions.
199. The Court noted that up to that point
the guarantees under Art 3 had been applied in contexts where
the risk to the individual of ill-treatment emanated from public
authorities or from non-State bodies where the authorities there
were unable to provide appropriate protection. Given the fundamental
importance of Art 3, the Court reserved the prerogative to scrutinise
situations where the source of the risk stems from factors which
cannot engage either directly or indirectly the responsibility
of the public authorities of that country, or which, taken alone,
do not in themselves infringe the standards of that Article. The
Court stated that to limit the application of Art 3 in this manner
would be to undermine the absolute character of its protection.
200. The Court found that the abrupt withdrawal
of medical treatment caused by the deportation of D to St Kitts
would amount to a violation of Art 3. The Court also made it clear
that everyone, irrespective of conduct (eg failed asylum seeker,
prisoner) is protected under Art 3 and that States are bound to
protect individuals within their jurisdiction from ill-treatment
(eg lack of medical facilities) even if that ill-treatment is
likely to take place outside the Contracting State; which was
the case here as D was dying, there was no medical treatment available
and he had no family to support him. Therefore there were exceptional
201. The Court subsequently adhered to D
v UK and relied on key criteria to assess whether there is
a "real risk" that the expulsion of a person living
with HIV/AIDS would be contrary to Art 3:
The appellant's present medical condition:
advanced or terminal stage.
Availability of support in the country
of return: family and close relatives.
Availability of medical care.
202. The Court did stress on several occasions
that HIV treatment may be in principle available yet at a considerable
cost, but seemed to rely on the existence of family support to
assist the appellant in accessing treatment.
203. In Ndangoya v Sweden61 where
the appellant was to be returned from Sweden to Tanzania, the
Court stated that:
"[a]dequate treatment is available in Tanzania,
albeit at a considerable cost ... the applicant is in principle
at liberty to settle at a place where medical treatment is available
... it is clear that he has many siblings in the country. It therefore
appears that the family links have not been completely severed
and that, consequently, the applicant would not be unable to seek
the support of his relatives upon return to Tanzania."
204. In Amegnigan v The Netherlands62
where the applicant where to be returned to Togo, the Court said:
"The Court has found no indication in the
applicant's submissions that he has reached the stage of full-blown
AIDS or that he is suffering from any HIV-related illness. Whilst
acknowledging the assessment of the applicant's treating specialist
doctor that the applicant's health condition would relapse if
treatment would be discontinued, the Court notes that adequate
treatment is in principle available in Togo, albeit at a possibly
considerable cost(...)[i]t does not appear that the applicant's
illness has attained an advanced or terminal stage, or that he
has no prospect of medical care or family support in Togo where
his mother and a younger brother are residing."
205. In SCC v Sweden63 where the
applicant where to be returned to Zambia, the ECtHR noted:
"The court recalls that the applicant's
present medical status was diagnosed in 1995 and that her anti-HIV
treatment has just recently commenced. The court further recalls
the conclusion of the Swedish National Board of Health and Welfare
that, when assessing the humanitarian aspects of a case like this,
an overall evaluation of the HIV infected alien's state of health
should be made rather than letting the HIV diagnosis in itself
be decisive. The court finds that the Board's reasoning is still
The Court stated that HIV treatment was available,
although at considerable cost, but it also mentioned the existence
of family support in the country.
UK Policy on the Removal of Failed Asylum Seekers
Living with HIV and AIDS
206. The Court's judgment in D has been
used by the Home Office to define its policy on the removal of
failed asylum seekers living with HIV. The new Home Office policy
was introduced in 2001 following the entry into force of the HRA
207. The policy states that UK's obligations
under Art 3 are engaged in medical cases where the following requirements
the UK can be regarded as having
assumed responsibility for a person's care;
there is credible medical evidence
that return, due to a complete absence of medical treatment in
the country concerned, would significantly reduce the applicant's
life expectancy; and
subject them to acute physical and
208. The policy is set out in Chapter 36
of the IND Operation Enforcement Manual dealing with "extenuating
circumstances" in relation to deportation orders:
"Cases involving persons with AIDS or who
are HIV positive are particularly sensitive. However, the fact
a person has AIDS or is HIV positive is not, in itself, a bar
to removal. Representations should be dealt with in the same way
as for any other medical condition, and enforcement action may
be pursued unless medical evidence available is sufficient to
satisfy the department that the person is not fit to travel.
If an offender who has AIDS or is HIV positive is
detected, ask him to provide a letter from his consultant confirming:
He has AIDS or is HIV positive.
The nature and location of the treatment
he is receiving.
His fitness to travel if required
to leave the country.
The UK's obligations under Article 3 of the ECHR
will be engaged in all medical cases where the following requirements
are satisfied: the UK can be regarded as having assumed responsibility
for a person's care, and there is credible medical evidence that
return, due to a complete absence of medical treatment in the
country concerned, would significantly reduce the applicant's
life expectancy and subject them to acute physical and mental
Case law has confirmed that the circumstances
in which an individual can resist removal on Article 3 related
medical grounds will be exceptional.
A person who is subject to removal cannot in
principle claim any entitlement to remain in the UK in order to
continue to benefit from medical, social or other forms of assistance
provided. Where similar treatment may not be available to a person
in their home country because of its cost, this does not amount
to a claim of inhuman or degrading treatment. However, to attempt
to remove someone to a country where there is a complete absence
of treatment, facilities or social support which could result
in an imminent and/or lingering death and cause acute physical
and mental suffering would be very likely to engage our obligations
under Article 3.
Each case is considered on its individual merits.
Notices may be served if appropriate but then refer to the relevant
casework section. Where a person is obviously very ill, it may
not be appropriate to serve notices."
209. The policy clearly distinguishes between
"availability" and "affordability" of treatment.
It also does not mention the availability of family support but
states that every case should be considered on a case by case
210. Although the Home Office had been sympathetic
to Art 3 cases in the past, there has been a significant change
in decisions over the past few years which seem to coincide with
an increasing harshening of the Government's policy on failed
asylum seekers, including in the context of HIV, and the debate
surrounding "imported infections" and the alleged draining
of NHS resources by failed asylum seekers and illegal migrants.
It is worth recalling that in 2004 the Government considered introducing
mandatory HIV tests for immigrants.
211. The Home Office's decisions in Art
3 claims have been widely criticised in the UK. In particular
the case of N v Secretary of State for the Home Department64
has been seen as appalling evidence of what has become an over-restrictive
interpretation of "exceptional circumstances" as first
stated by the ECtHR in D v UK.
212. "N" (a 24-year-old woman)
entered the UK from Uganda. She used a false name and a false
passport. She was extremely ill and within a couple of days was
admitted to Hospital where she was diagnosed with full-blown AIDS
and a cluster of AIDS-related illnesses including Kaposi's sarcoma.
She did not know she had AIDS and did not come in the UK for medical
treatment, but as a refugee. She had been kidnapped and held captive
by the Lord's Resistance Army for two years, then by another rebel
group, the National Resistance Movement. She had been severely
mistreated and repeatedly raped. "N" applied for asylum
on two independent grounds: first, under the 1951 Refugee Convention
claiming that she would be persecuted by the Ugandan authorities,
or at least that they would fail to protect her from the rebels;
and, second, arguing that deporting her to Uganda would expose
her to breaches of her rights under Art 3 ECHR.
213. In April 2001 the Home Office refused
N's application for asylum. Her appeal under the Refugee Convention
was dismissed but her Art 3 claim was upheld both by the Adjudicator
and the Immigration Tribunal Appeal (now abolished). N accessed
HIV treatment and became well, stable and free from any significant
illness. However, her doctors said that she would have a year
at most to live if medication were withdrawn, as it would be in
Uganda. The Court of Appeal reversed the decision saying that
her case stretched Art 3 too far: D was certainly going to die;
N might theoretically be able to get treatment, although this
was extremely unlikely and, even if she did, it would not prevent
her illness from getting worse.
214. The case went to the House of Lords
which upheld the Court of Appeal's decision and ruled that there
was no violation of Art 3 by the UK in returning an immigrant
suffering from AIDS to her country of origin where she would not
be able to obtain the necessary medicines and treatmentsthat
she is currently receiving in the UKto prolong her life
and to maintain her relative good health to prevent her suffering
severe pain and anguish; and where she also does not have any
215. Although the Lords referred to Strasbourg
jurisprudence, they seem to have disregarded the importance of
the availability of family support in the country of return which
has been acknowledged by the ECtHR and which it is argued should
be taken into consideration in any HIV-related claims under Art
216. The Court distinguished D v UK on
the grounds that the situation in the receiving state were not
as extreme as that faced by a terminally ill patient in that case
where there was no prospect of any medical care or family support.
The Lords argued that a claim would only succeed where "the
applicant's medical condition has reached such a critical state,
that there are compelling humanitarian grounds for not removing
him or her to a place which lacks the medical and social services
which he or she would need to prevent acute suffering.".
Therefore Art 3 did not require contracting states to undertake
the obligation of providing aliens with indefinite medical treatment
lacking in their home countries, which they said, would open the
floodgates to a myriad of claims placing an unreasonable burden
on the state. Although they expressed sympathy for N's plight
and reminded the Home Secretary that they could exercise their
discretion not to deport her, they concluded that N should not
be allowed "to remain in the host state to enjoy decades
of healthy life at the expense of [the] state".
217. As argued by Byrne, if N could not
qualify for Art 3 protection then who will in the future? 65
218. The over-restrictive interpretation
of the policy on Art 3 means that failed asylum seekers are being
sent back with a death sentence at destination. In their judgment,
the Lords seem to generalise the issue as that of provision of
medical treatment as opposed to the provision of treatment for
a condition like HIV that is incurable, require daily and demanding
treatment that needs to be taken at specific times for the rest
of a person's life, and which, if stopped even for a short period
of time, can lead to the deterioration of a person's condition.
219. The UK government seems to have conveniently
forgotten about the fundamental obligations that fall on States
Parties to human rights treaties.
220. The government's policy on asylum has
been repeatedly criticised by the UN and the Council of Europe.
An example of the total disregard of the government for its international
obligations is the fact that two years after the UN Economic,
Social and Cultural Committee emitted concerns about the UK asylum
policy, not only had the government not implemented the Committee's
recommendations but it had actually introduced discriminatory
policy denying marginalised and vulnerable groups the most the
most basic and fundamental rights guaranteed by the ICESCR.
221. International human rights and humanitarian
law and policy provide a framework for the treatment of HIV-positive
asylum seekers which should be used by the government to develop
a human rights based response to the issue of HIV in the context
of asylum in the UK.
REFERENCES 1 Report
by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his
visit to the United Kingdom (4-12 November 2004).
3 (2006). The Guidelines were first published
in 1998 and revised Guideline 6 first published in 2002.
4 UNAIDS & UNHCR Best Practice Collection,
5 Immigration, Research and Statistics Service,
6 Source: Refugee Council.
7 British Medical Association, Asylum seekers:
meeting their healthcare needs, October 2002.
8 Home Office, Understanding the decision-making
of asylum seekers, July 2002.
9 Based on Home Office figures for 2004.
10 UK must share, not shift asylum burden,
8 April 2005 UNHCR statement.
11 Source: Refugee Council.
12 Women's Resource Centre, Why Women?,
13 SI 2004/614.
14 Department of Health, Proposals to
exclude overseas visitors from eligibility to free NHS primary
medical services: a consultation, 2004.
15 Immigration and Asylum Act 1999.
16 HL(E))  3 WLR 1014.
17 European Council on Refugee and Exiles,
UK Country Report for 2005, August 2006.
18 See for example, Citizens Advice Bureau,
Shameful Destitution, 2006. See also Chartered Institute
of Housing, Submission to Joint Committee on Human Rights, 2005.
19 Refugee Council, A Study of Asylum
Seekers with Special Needs, April 2005.
21 Supra, at 19.
22 See for example, Inter-Agency Partnership,
The impact of section 55 on the Inter-Agency Partnership and
the asylum seekers it supports (2004); Refugee Council, Hungry
and homeless: the impact of the withdrawal of state support on
asylum seekers, refugee communities and the voluntary sector (2004).
23 This was highlighted in the Health Select
Committee's Third Report on New Developments in Sexual Health
and HIV/AIDS Policy (2005).
24 This was illustrated in various NGO submissions
to the Health Select Committee inquiry into new developments in
sexual health and HIV.
25 D v UK (1997) 24 EHRR 423.
26  35 EHRR 1.
27 See for example, A v United Kingdom
(1998) 27 EHRR 611; Z v United Kingdom  2 FLR
612 at 631, para 73.
28 Supra, at 25.
29 (5207/71)CD 39, 99.
30  ECHR 101.
31 Health and Freedom from Discrimination,
Health & Human Rights Publications Series, No 2, 2001.
32 See Rasmussen v Denmark (1984)
7 EHRR 371.
33 See Belgian Linguistic Case (No 2)
(1979-80) 1 EHRR 252, para. 9. This principle was applied
in Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR
471, where the applicants, who were lawfully and permanently resident
in the UK, complained that their husbands were refused permission
to join them. The ECtHR found no breach of Art 8 taken alone,
but ruled a violation of Art 14 in conjunction with Art 8. The
Court held that although it was legitimate to restrict the admission
of non-national spouses to the UK, it was discriminatory to distinguish
between non-nationals' wives (permitted entry) and non-nationals'
husbands (entry refused).
34 See X v Germany (1976) 19 YB 276,
35 See Schmidt and Dahlstr½m v Sweden
(1979-80) 1 EHRR 632.
36 See for example, Smith and Grady v
UK  IRLR 734.
38 Note that if one looks at the categories
of "visitors" who have to pay for HIV treatment (ie
illegal immigrants, visa overstayers, failed asylum seekers and
others living in the UK "without proper authority"),
the issue of discrimination is still raised arguably on the grounds
of national origin and other status.
39 Supra, at 23.
40 Source: http://www.homeoffice.gov.uk/rds/pdfs06/asylumq206.pdf
43 Amnesty International, Seeking Asylum
is not a Crime: Detention of people who have sought asylum, 2005.
44 Source: No Place for a Child Coalition.
45 Source: Save the Children, No place
for a child, 2005.
46 Principles of Medical Ethics relevant
to the Role of Health Personnel particularly Physicians, in the
Protection of Prisoners and Detainees against Torture and Other
Cruel, In human or Degrading Treatment or Punishment (Adopted
as UN General Assembly Resolution 37/194, 18 December 1982), Principle
47 UNHCR Comments on the 2005 Immigration
and Nationality Bill.
48 UNHCR London 2005.
49 BID Report, pp 13-14.
50  37 EHRR 41.
51 22 October 2002.
52 (Communication No. 704/1996).
53 (Communication No. 705/1996).
55 Immigration Rule 395(B).
56 Statement of Changes in Immigration Rules
HC 1337July 2006.
57 International Commission of Jurists,
Terrorism and Human Rights, p 246.
58  ECHR 14.
59 Supra, at 25.
60 Ibid, at para 49.
61 App No 17868/03, 22 June 2004 (inadmissible).
62 App No 25629/04, 25 November 2004 (inadmissible).
63 Application No 46553/99, 15 February
64 (2003) EWCA Civ 1369,  UKHL 31.
65 I Byrne, "Make the right to health
a reality: legal strategies for effective implementation",
Commonwealth Law Conference, September 2005.