Joint Committee On Human Rights Written Evidence

55.  Memorandum from the UK AIDS and Human Rights Project

INTRODUCTION

  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 the UK.

  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.

OVERVIEW OF UK'S OBLIGATIONS UNDER INTERNATIONAL HUMAN RIGHTS LAW

  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

(CEDAW).

—  International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

—  European Convention on Human Rights (ECHR).

  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.

THE HUMAN RIGHTS ACT

  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.

INTERNATIONAL HUMAN RIGHTS LAW AND HIV IN THE CONTEXT OF ASYLUM

  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 (UNAIDS).

  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 and AIDS.

KEY FACTS ABOUT ASYLUM IN THE UK

  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 is ongoing.6

  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 basic needs.7

  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

PROVISION OF HIV TREATMENT AND OTHER HEALTHCARE TO ASYLUM SEEKERS AND FAILED ASYLUM SEEKERS

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 rape—mostly perpetrated by soldiers, police or agents of the state. 12

  32.  Common healthcare needs that have been identified are:

Physical Needs:

—  communicable diseases (TB, HIV, Hepatitis A, B and C, parasitic diseases);

—  physical effects of war/conflict/torture;

—  maternal care; and

—  sexual health care (for example as a result of rape and/or sexual violence).

Psychological Needs:

—  symptoms of psychological distress, depression, anxiety;

—  mental health; and

—  post-traumatic stress.

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 would remain.

  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 services.

  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 conditions:

(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 medical reason".

(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 vouchers—no 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 caused—and continues to cause—hardship 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 support structures.

  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 authority—someone 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 clearly—and the medical evidence confirms this—more 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." (Paras 39-40)

"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. 43-44)

  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.

UK GOVERNMENT'S OBLIGATIONS UNDER INTERNATIONAL HUMAN RIGHTS LAW

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 appropriate).

  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 43(a)).

  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 that:

"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 2002—two 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 and education."

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 objective;

(4)  is the least intrusive and least restrictive means available; and

(5)  is not imposed arbitrarily or discriminatorily.

  62.  These criteria—although the wording may differ—are 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 which states:

"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 condition. 23

  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 document.

  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 section.

  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 seekers.

  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) 28

  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 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 [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." (para 20)

  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. 35

  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 further noted:

"[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." (para 111)

  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.

DETENTION OF HIV-POSITIVE ASYLUM SEEKERS

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 months. 41

—  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. 42

  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 of detention.

  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 review.

  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 or immigrants.

  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 fast-tracked.

  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 track cases):

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 be justified.

5.  Each case must be considered on its individual merits.

  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 or elsewhere":

—  unaccompanied children and persons under the age of 18;

—  the elderly, especially where supervision is required;

—  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 easily manageable;

—  pregnant females of 24 weeks and above;

—  any person with a medical condition which requires 24 hour nursing or medical intervention; and

—  anybody identified as having an infectious/contagious disease.

  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 Law

  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 1)

  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 International Law

  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 that:

"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 principles.

  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 UN.

  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 the UK.

  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." (Guideline 10(v))

  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 detained." 46

  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 UK

  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 scrutiny.

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." 48

  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 detention centres."

"[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 170 days.

  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 periods.

  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 detention.

  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 2005—January 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 law.

  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 hospital.

  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 Guidelines.

  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.

DISPERSAL OF HIV-POSITIVE ASYLUM SEEKERS

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 considered:

—  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 transmission.

—  In 2006, the National AIDS Trust published a report on the dispersal of asylum seekers living with HIV.

  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 a GP.

  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.

REMOVAL OF HIV-POSITIVE ASYLUM SEEKERS

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 (ILR).

  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 circumstances—especially 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 removal). 55

  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 action.

  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 Law

  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) states that:

"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 man—who was dying of AIDS-related complications—was 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. 60

  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 circumstances.

  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 valid."

  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 1998.

  207.  The policy states that UK's obligations under Art 3 are engaged in medical cases where the following requirements are satisfied:

—  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 mental suffering.

  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.

—  His life expectancy.

—  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 suffering.

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 basis.

  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 treatments—that she is currently receiving in the UK—to 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 family support.

  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 3.

  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.

CONCLUSION

  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).

  2  Ibid.

  3  (2006). The Guidelines were first published in 1998 and revised Guideline 6 first published in 2002.

  4  UNAIDS & UNHCR Best Practice Collection, 2005.

  5  Immigration, Research and Statistics Service, Home Office.

  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?, 2006.

  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)) [2005] 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.

  20  http://www.bailii.org/ew/cases/EWCA/Civ/2006/655.html

  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   [2002] 35 EHRR 1.

  27  See for example, A v United Kingdom (1998) 27 EHRR 611; Z v United Kingdom [2001] 2 FLR 612 at 631, para 73.

  28  Supra, at 25.

  29   (5207/71)CD 39, 99.

  30   [1998] 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, p 286.

  35  See Schmidt and Dahlstr½m v Sweden (1979-80) 1 EHRR 632.

  36  See for example, Smith and Grady v UK [1999] IRLR 734.

  37  Ibid.

  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

  41  Ibid.

  42  Ibid.

  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 1.

  47  UNHCR Comments on the 2005 Immigration and Nationality Bill.

  48  UNHCR London 2005.

  49  BID Report, pp 13-14.

  50   [2003] 37 EHRR 41.

  51  22 October 2002.

  52   (Communication No. 704/1996).

  53   (Communication No. 705/1996).

  54  http://bmj.bmjjournals.com/cgi/content/full/329/7461/322

  55  Immigration Rule 395(B).

  56  Statement of Changes in Immigration Rules HC 1337—July 2006.

  57  International Commission of Jurists, Terrorism and Human Rights, p 246.

  58   [1989] 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 2000.

  64   (2003) EWCA Civ 1369, [2005] UKHL 31.

  65  I Byrne, "Make the right to health a reality: legal strategies for effective implementation", Commonwealth Law Conference, September 2005.

September 2006

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Prepared 30 March 2007