HIV / AIDS
HIV/AIDS - IMMIGRATION ISSUES
If
I am HIV positive or have AIDS, how will this affect my immigration
status?
The UK, unlike dozens of other countries, has taken a relatively
progressive position regarding questions involving immigration and
HIV/AIDS. The present position is that being HIV positive should not
prevent individuals from being admitted to or remaining in the country,
provided that they otherwise qualify under immigration law. While there have been discussions by the
government about requiring mandatory testing in connection with some entry
clearance applications, as at December 2003, it is not clear whether and when any such changes will
be implemented. Similarly, it is not being
suggested that individuals should be excluded because of their HIV status but,
rather, that they may be required to show
an ability to cover the costs of treatment unless they otherwise qualified for NHS treatment
(see para 2 below).
Will
my HIV status ever be relevant to my right to stay in the country?
The main limitation, which might apply, is a limitation that applies to
all medical conditions. In some circumstances, individuals need to be in a
position to demonstrate an ability to pay for any medical treatment which
may be required because of HIV-related illness during their stay.
This condition should not apply, however, to individuals who have a
status leading to residence (such as leave to remain on the basis of an
unmarried partners relationship), or individuals with 'ordinary residence' in
the UK. 'Ordinary residence' is a technical term which includes not only
those intending to stay permanently but individuals who have lived in the
UK for a period of not less than one year, work permit holders and various
other categories. The NHS is currently (December 2003) conducting an internal review of
its regulations in this area and you should consult a specialist
organisation like the Terrence Higgins Trust or an expert lawyer if you
have specific questions relating to your situation.
Should
I reveal my HIV positive status to immigration authorities?
The answer to this question will depend very much on the particular
situation. In many cases, the fact of being HIV positive will not be
relevant to your immigration status and, therefore, there will be no
obligation to reveal it to the authorities.
In some cases, the fact that you are HIV positive may in fact be a
strong compassionate factor, which should be mentioned. In the context,
for example, of an application made under the terms of the unmarried
partners rules, particularly where the application falls short of the
ordinary requirements, it might well be a good idea to provide information
about compassionate health-related factors in the case.
NB: Expert guidance should be sought from a lawyer before doing so.
Are
there circumstances where I might be granted permission to remain in the
UK specifically because of my HIV status?
UK immigration authorities have, indeed, been willing to grant
exceptional or discretionary leave to enter or remain in the UK to some individuals
affected by HIV and AIDS. Such applications have been
successful where the individual concerned is undergoing treatment in the
UK and there is credible medical evidence that return to the individual's
home country would result in substantial damage to his or her physical and
psychological health. The guidelines relating to the grant of such
exceptional or discretionary leave are, however, complicated and expert advice is required
before making such an application. In November 2003, the Court of Appeal, in the case of “N”,
suggested that there should be a substantial tightening of such guidelines but the case is
being appealed to the House of Lords and it remains unclear how the law may evolve .
What
information should I provide If I am applying for exceptional or discretionary leave on the
basis of my HIV status?
You will want to provide as much documentation as possible regarding
your state of health, including information regarding treatment you are
receiving and the availability of such treatment in your home country.
Detailed reports from doctors, social workers and others familiar with
such cases should be submitted, including frank information about your
life expectancy, the likelihood of your needing to rely on public funds
and other related issues. You should never make such an application
without professional advice and assistance.
Links
Department of Health website - NHS access for
foreign partners in civil partnerships and
asylum seekers
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