A Positive Partnership: The HIV immigration project

A Positive Partnership - The HIV Immigration Project was a partnership of three organisations, Positively Women, Asylum Aid and, during the second phase, the International Community of Women living with HIV/AIDS (ICW).  When the Project came to an end in March 2009, the partnership produced a report to document how the project had worked and the continuing needs of women from abroad who were living with HIV in the UK. 

The Project provided a holistic response to the women’s needs with a particular emphasis on legal advice in relation to asylum and immigration law.  This was provided through a mix of individual outreach and group sessions for staff, volunteers and clients by Asylum Aid caseworkers. 

Throughout most of the course of the Project the case of N v Secretary of State for the Home Department[1] was going through the courts.  The case examined the circumstances in which the removal of a person living with HIV could constitute a breach of their human rights because appropriate treatment would not be available or accessible in their country of origin.  The numerous court decisions in this case as it went all the way to the European Court of Human Rights had a major effect on the potential for the Project’s clients to obtain protection from removal to their country of origin.  They resulted in the emergence of a clear protection gap for women living with HIV which the Project attempted to resolve. 

To tackle the protection gap the Project adapted in two ways.  Firstly, ICW was brought into the partnership.  The Project drew on ICW’s membership, regional offices and links to positive women's networks at local and national level. Through these linkages ICW staff were able to establish the situation in women’s countries of origin regarding medical treatment and discrimination.  They offered one-to-one sessions with clients to discuss this information, and by putting clients in touch with local sources of support prior to their return, it was intended that women would feel less anxiety about this. Further, it was hoped that when women returned, they could utilise the knowledge gained through their attendance at Positively Women in order to become involved in health and human rights advocacy efforts either through local networks or ICW.

Secondly, Asylum Aid sought to identify alternative ways to obtain protection through legal avenues.  In the case of CA v Secretary of State for the Home Department[2]  the Court of Appeal held that removing a mother living with HIV to her country of origin, which would risk her watching her child contract a terminal illness due to having to mix formula milk with unclean water and then die, was capable of constituting the sort of inhuman treatment prohibited by Article 3 of the European Convention on Human Rights.  This led the way to cases being successfully taken on focusing on women living with HIV who had a child with HIV as their return would result in the mother witnessing the child’s death.

Towards the close of the Project, new avenues for resolving the immigration status of women living with HIV were identified by Asylum Aid.  They included:

1.      Women whose children were HIV positive;

2.      Women who are HIV positive and where there is no treatment for the woman on return and the HIV negative child could be left orphaned with no one to look after them;

3.      Women who were granted Exceptional Leave to Remain (ELR) or Discretionary Leave (DL) or Humanitarian Protection (HP) on the grounds of their health prior to the decision in N particularly if they have been in the UK for some time and have been receiving treatment;

4.      Clients from Zimbabwe in particular but possibly other countries who would be discriminated against in accessing treatment because of their actual or imputed political opinion (for example, ICW research has discovered several instances of HIV positive young women in Namibia being subject to forcible sterilisation);

5.      Under Immigration Rule 395C all women living with HIV who do not have leave to enter or remain will be able to make representations citing their compassionate circumstances before they are removed and these will have to be considered before their removal. 

Whilst these examples provide new possibilities for women living with HIV, they are limited to those in certain circumstances and will depend on the facts of each particular case.  Recent developments in caselaw on Article 8 of the European Convention on Human Rights also provide greater protection against removal for women who have established families in the UK.  Applications on these lines will depend upon the facts of the particular case.[3]  Asylum Aid will continue to monitor ways in which changes in caselaw might benefit women living with HIV. 

With the knowledge base developed between Positively Women, Asylum Aid and ICW through the HIV Immigration Project, it is anticipated that additional ways to close the protection gap may be identified. 

However, the protection gap still means that the majority of women living with HIV now have no right to be protected from removal from the UK on that basis alone.  They will continue to live without formal immigration status in the UK with all the ensuing difficulties this entails or they may have to return to countries where the provision of life-prolonging treatments are less effective, not available or only available at great cost.

In a box:

·         Positively Women is the only national charity for women and families living with HIV in the UK.  The organisation provides practical and emotional support, enables women to make informed decisions about health and personal choices, and challenges stigma and discrimination.  Positively Women is strongly committed to the ethos of peer support and empowerment.  Services include guidance, advice and advocacy, outreach work in hospitals, clinics and prisons, information services, support to children and families, skills building programmes, as well as campaigning activities.

·         By combining expert legal advice work with campaigning activities, Asylum Aid responds to asylum-seekers' immediate legal needs and addresses the underlying causes of the difficulties they encounter during the asylum process.  The Refugee Women's Resource Project (RWRP) at Asylum Aid provides a unique blend of legal casework, information, research, and policy work and campaigning for women seeking asylum.

·         The International Community of Women Living with HIV/AIDS (ICW) is the only international network run for and by women living with HIV.  ICW addresses the desperate lack of support, information and services available to women living with HIV worldwide and the need for HIV positive women to have influence and input on policy development.  It does this through increasing representation and advocacy by women living with HIV, facilitating research led by and for women living with HIV, networking and shared communication.

Case studies:

Case study: O

O arrived in the UK from Nigeria while she was pregnant.  When she gave birth to a boy, W, they were both diagnosed to be HIV positive. Because of O’s HIV status, W’s brain and nerves were affected during the pregnancy and this severely shortened his life expectancy.

Asylum Aid represented O. They instructed an expert in HIV to prepare a detailed report on the prognosis and developmental needs of W and invited the expert to give evidence at the appeal hearing.  The Asylum and Immigration Tribunal acknowledged that W's needs were very much dependent on his having access to drugs.  They recognised that it would breach article 3 of the ECHR to make a mother watch her child die a certain horrible death. They distinguished this case from the case of N by focusing their concern on the child, W.

Case Study: E

E faced being returned to Jamaica and was given very little time to prepare for her departure.   Positively Women passed her contact details to ICW, who contacted an ICW member working at the Jamaican Network of People living with HIV (JN+).   Through ICW, JN+ ascertained the support E would need on arrival in Jamaica and offered to meet E on her arrival at the airport with medication, if this was needed.  Subsequently, E contacted JN+ and received advice and support from them to assist with her living in Jamaica.

A positive partnership: The HIV Immigration Project 2003-2009

a joint project by Positively Women, Asylum Aid and

International Community of Women living with HIV/AIDS

Project report: A positive partnership: The HIV Immigration Project 2003-2009

[1] [2003] EWCA Civ 1369

[2] [2004]EWCACiv1165

[3] See Appendix C