PRACTICAL LEGAL ADVICE PART TWO: Immigration, dispersal and treatment for asylum seekers
 illustration by rose hardy |
Solicitors and lawyers are currently inundated with immigration claims, including ones from people with HIV. Rose de Freitas asked a team of specialist legal advisers to answer some typical questions
Nse Jackson, Terrence Higgins Trust: “Since June 2002, the Home Office HO) changed its policy so you can’t work until your application has been processed and status granted. However, if you made your application more than, say, two years ago, you would then have been allowed to apply for work after six months. If your claim goes back this far, it’s worth trying to see if the HO will allow you to work now. As a student you are entitled to work part-time hours each week. As a visitor you can’t work at all.”
Nazia Ashraf, Duncan Lewis & Co solicitors: “Since 1999 you have only been able to get assistance from the National Asylum Support Service. Even then you can only get assistance if you apply for asylum immediately at port of entry. But there are grounds where you can still claim for NASS if asylum has been applied for in the country of origin.”
Nse Jackson: “Either leave the country, or appeal against your original claim for Leave to Remain. At this stage you definitely need legal advice if you haven’t already got some.
It then depends on what type of Leave to Remain you’re after. Most people we deal with around HIV claims make applications to remain here under Article 3 of the European Convention on Human Rights.
Most of our cases at the THT get turned down because the Home Office (HO) is getting tougher, saying that treatment is available now in most developing countries - despite the fact that such treatment is way beyond most clients’ means. They say things like: ‘Well, now you’re on combination therapy and your CD4 has gone up from six to 146, you’re fit to travel.’ It’s ridiculous, but an increasing number, indeed most, of our legal cases for clients seeking Leave to Remain are now refused.
However, when we go on to appeal against the refusal of Leave to Remain, I’d say about 90 per cent of our appeals are successful. This is because the adjudicators take more of a sympathetic view. It usually takes three to six months to take a case that’s been refused to a Court of Appeal. It has got quicker recently because more adjudicators have been taken on board.”
Nazia Ashraf: “The only way to get cases through appeal is to illustrate that treatment the client requires is not available in their country of origin. It just depends on the adjudicator you get on the day of the hearing. There have been cases where if the only reason the client couldn’t go back home was because he could not afford treatment, the courts held that this was not a breach of Article 3. The majority of my clients have been granted one year’s Exceptional Leave to Remain. They will have to apply for extensions after a year.”
Neveen Galal, Duncan Lewis & Co: “Generally the HO is clamping down, saying there are now much better facilities in African countries. So, prior to submitting our application or appeals, we ask a doctor here to recommend that their patient must remain here to stay well. It’s a tough situation now.”
Nse Jackson: “If you’re single, NASS will disperse you. I know women who were in London a couple of years, worked for two voluntary groups, accessed HIV and treatment facilities here and still got sent away. The logic is that good HIV facilities are available all across the UK.
Children under a certain age at school may warrant you remaining in London. Other grounds are if you’re being treated by the Victims of Torture Foundation and you have close family members here in the community; or you have specialist medical needs that are best treated in London. I did see one client who was brought back to London from Newcastle. He was sick when he was sent to Newcastle; eventually, after High Court proceedings, NASS backed down.”
Catherine Bradleigh, THT: “There is however, something called ‘Local Connection’ which is the right for asylum seekers to ask to be moved to a location where they have a local connection or relative. If you were dispersed to Glasgow, say, but you have a cousin living in London, you have the right to move near your relative.”
Sanjeev Sagoo, Duncan Lewis & Co: “At the moment, NASS policy is not to house people in London. People are being moved mainly to places like Manchester, Birmingham, Coventry, Sunderland and Newcastle.
I don’t actually have lots of complaints from my clients about the accommodation itself. You might have a case for changing accommodation if you have rats or cockroaches, or severe damp. But if the place is too small, that’s not sufficient.
The only problem my clients seem to have is having to leave London where they have a good network of ethnic groups. This is what they miss most, and experiencing language problems in less cosmopolitan towns.
If clients want to move back to London they should find out if they have family there who are willing to accommodate them. You can ask NASS to provide just financial and welfare assistance but give up your housing support. But you have to show that your family will house you, and if you breach any NASS condition, your support is terminated and you lose everything.”
Nse Jackson: “If you apply for Leave to Remain here you have no right to bring your family over while waiting for your application to be granted. But once the HO gives you refugee status, you automatically have the right to bring your family over.
There are two types of Leave to Remain with different qualifications concerning bringing your family over. Firstly there’s ‘Discretionary (or Exceptional) Leave to Remain.’ In this case, after six years of being granted this kind of stay, you’re eligible to apply for family reunion rights, though it is usually granted for special cases only. In the case of leave to remain under ‘Humanitarian Protection’, after three years you can apply for ‘Indefinite Leave to Remain’ and are then entitled to apply for family reunion, but it’s not guaranteed you’ll get it.”
Nse Jackson: “The NHS is only obliged to give you ‘emergency’ ie A&E-style treatment if you are a visitor or overstayer. Officially, if you’ve been in the country over a year, you’re eligible for free non-emergency treatment. There have been cases where hospitals have treated patients for HIV opportunistic infections such as PCP but refused them antiretrovirals. Some hospitals are now billing clients and there is a greater reluctance to treat if you haven’t made an application. Once you’ve made an Article 3 application, you’re then entitled to NASS support and covered by them for free treatment. NHS guidelines state that a necessary treatment cannot be stopped once it has been started.”
Nazia Ashraf: “It depends on the situation:
a) If the client is a student and able to continue with his/her studies, pay course fees and remain up to date with attendance, then I believe that it is not necessary for him/her to apply for asylum. In a recent case, my client wanted his family to join him in the UK and applied for an extension of his student visa, because on that basis he could apply for his family to join him. If he had applied to NASS and changed his status to asylum seeker, he would not have been able to do that until granted asylum.
b) If the client is unable to continue with his/her studies and is in need of social services assistance with accommodation and finances, then I would suggest in that case to make an Article 3 application. The application will need to be submitted before the student visa has expired, remembering that at the moment article 3 applications are taking up to a year to reach a decision.”
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Remember: if you are HIV positive and are considering making an asylum application it is in your interest to seek legal advice as soon as possible.
