HIV LEGAL CORNER
DIAGNOSED WITH HIV WHILE VISITING THE UK?
If you’ve been diagnosed with HIV while
visiting the UK on a visa, you’ll need to prove exceptional circumstances
to stay
I have just been diagnosed with HIV and am in the UK on a six month
visitor’s visa. How can I stay in the country?
The Government sets out the reasons why people from abroad can stay in the
UK in its Immigration Rules. The rules do not allow a
person from abroad to remain in the UK simply because they have been diagnosed
HIV positive. Like all visitors, they would be expected to return to their
home country at the end of their visit, before the six month visa had expired.
The maximum time you can stay in the UK as a visitor is six months.
The only Immigration Rule that allows a person to remain in the UK for medical
treatment is when it is to undergo or continue private medical treatment.
This means you must be paying for the treatment yourself and not getting it
free from the NHS. You must show that you have sufficient funds to pay for
your
treatment and to support yourself without working or claiming any welfare
benefits. This Rule is intended for people coming for a specific course of
treatment which must have an end in sight. You may have heard of people being
able to stay in the UK because they are HIV positive and receiving combination
therapy from the NHS. These people were granted permission to stay some time
ago on an exceptional basis because the facts of their case were considered
to be so compassionate by the Home Office. In the past, when combination therapy
was not available in many poorer countries, the Home Office would not send
a person back if they thought treatment could not be continued there and the
person would quickly die.
A far stricter policy
In recent years the Home Office have adopted a much stricter view, as medical
treatment has improved slightly in some poorer countries. Now the Home Office
will only allow a person to remain on grounds of HIV status in what are described
as “truly exceptional cases involving extreme circumstances”.
These may include where a person is in the terminal stages of an illness and
has a short life expectancy or where the removal of the person would significantly
shorten their life expectancy and cause “acute mental or physical suffering”.
A growing number of people who have made applications to remain because they
are HIV positive have had their applications turned down by the Home Office
on the grounds that their circumstances are not truly exceptional or extreme.
These are usually people who, because they are on combination therapy, are
in a
relatively good state of health. These decisions have been challenged in the
courts but without success. The highest court in the land, the House of Lords,
recently held that if the treatment is available in the person’s home
country then it would not breach their human rights to send them back to that
country even if they could not afford the treatment and would die as a result.
In short, if you are HIV positive, are fit enough to travel and there is some
treatment available in your home country you will be expected to return there.
If your health is so poor that you are unfit to travel or if you can show
that the treatment you need is not available in your country at any cost,
you could apply to the Home Office to remain. You are advised to apply through
a solicitor accredited by the Law Society to provide immigration advice. You
would need to obtain a specific report from your consultant regarding your
poor health.
Other grounds to stay in the UK
Given the likelihood of your application being refused, it is worth considering
whether there are any other grounds for staying in the UK, unrelated to health.
The Immigration Rules make provision for people to stay as students, to work
in skilled jobs and under specific schemes such as the working holiday maker
and highly skilled migrant schemes. It is worth getting advice on options
that may be available to you given your particular skills and background.
What you should not do is put your head in the sand and do nothing. You should
either return home before your visa expires or get some advice and make an
appropriate application which stands a chance of succeeding. If you remain
in the UK beyond the six months you commit a criminal offence, become an overstayer
and it becomes a lot more difficult to sort things out in the future.
Matthew Davies, Solicitor, Wilson & Co. Solicitors
www.wilsons-solicitors.org.uk
• View the Immigration Rules at www.ind.homeoffice.gov.uk
• The Law Society, 0870 606 6575, www.lawsociety.org.uk
• This column is not intended as legal advice and should not be relied
upon as such. If you are faced with a employment problem whether similar to
the above or otherwise, your are advised to seek specialist legal advice.
