Good news for UK HIV sufferers

Out of the large number of Zimbabweans who are affected by the epidemic, readers of this blog will know at least one person who is living positively.

 

The court ruling discussed below will, therefore, be welcomed by many Zimbabweans who are HIV positive and currently live in the UK, and there is more good news for those who wish to work or study in the USA.

 

In the case of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353, the Court of Appeal has allowed the appeal of a woman with HIV/AIDS on the basis that she was a lawful entrant, had previously been granted leave on the basis of her medical condition and had been lawfully resident in the UK for quite some time on that basis. These features were found to distinguish the case from Article 3 cases like D v UK and N v UK.

 

Giving the leading judgment, Sadly LJ went on:

 

JA’s is a markedly different case. Her position as a continuously lawful entrant places her in a different legal class from N, so that she is not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom.

 

There is no finding by the AIT (Asylum and Immigration Tribunal) that she has much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal.

 

Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgment capable of tipping the balance of proportionality in her favour.

 

It was possible for JA to succeed on the basis of Article 8, essentially. JA is the first bit of good news for HIV/AIDS sufferers facing removal for a very long time. It is a very positive decision for asylum claimants who were previously granted leave on the basis that the UK had assumed responsibility for their treatment, only to be told a few years later that the UK had later unassumed responsibility.

 

A typical example is that of an individual who was granted discretionary leave to remain on medical grounds. On applying for an extension or indefinite leave to remain, further leave was refused on the basis of current caselaw which has an extremely high threshold for cases being argued on medical grounds.

 

This case gives people who have been refused further leave or indefinite leave to remain the chance to submit further representations to the UKBA on the basis of the reasoning in the case of JA.

 

There is more good news for immigrants with who are HIV positive who wish to work or study in the United States of America. US president Barack Obama has lifted a ban on HIV-positive people entering the country.

 

The 22-year-old law was one of the most restrictive immigration policies in the world for people with HIV.

Obama signed a Bill last Friday which reauthorised federal funding for an HIV-related healthcare policy.

While doing so, he also announced the repeal of the travel ban, describing it as a "decision rooted in fear rather than fact."

"If we want to be the global leader in combating HIV/AIDS, we need to act like it," Obama said.

"And that’s why on Monday, my administration will publish a final rule that eliminates the travel ban effective just after the New Year."

The ban had also barred long-term foreign residents from obtaining resident status, purely on the basis of having HIV.

Only a handful of other countries, such as Yemen and Qatar, have similar policies on barring entry to HIV-positive individuals.

HIV experts have criticised the ban in the past for encouraging people not to get tested out of fear.

Obama said that lifting the ban is a "step that will encourage people to get tested and get treatment. It’s a step that will keep families together, and it’s a step that will save lives".

The news was welcomed by the Terrence Higgins Trust, the UK-based sexual health charity.

Lisa Power, head of policy at the organisation, said: “Terrence Higgins Trust has campaigned for many years to end this discriminatory policy. We hope its ending sends a strong signal to governments and politicians globally who support such pointless gestures.

"Entry bans have no justification on public health grounds. Their only real impact is to increase stigma and prevent ordinary people with HIV from getting on with their lives."

If any readers are affected by HIV or know anyone who is, then it is worth seeking legal advice in light of the recent developments. Please note that this judgement does not state that everyone who is HIV positive will be granted leave to remain in the UK. It deals specifically with people that have previously been granted discretionary leave to remain on medical grounds.

Readers should not to misinform people, but advise friends and family to obtain legal advise. I have encountered many individuals that have misinterpreted some of my blog posts and others posted by fellow colleagues. It is irresponsible to misrepresent information that is posted for the benefit of readers.

On a more positive note we have had a lot of feedback from readers who have had positive outcomes to their immigration matters after reading information posted on New Zimbabwe Blogs.

Here’s to a fruitful and blessed 2010!