Protection Gaps for Migrant Women
posted: 11/05/2009
The HIV Immigration Project has produced a useful report highlighting the gaps in protection women migrants with HIV still face. The Project brought together three organisations, Positively Women, Asylum Aid, and the International Community of Women living with HIV/AIDS (ICW).
Throughout the Project the case of N v the Home Secretary was going through the courts. This case decided when removing a person living with HIV was a breach of 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, has caused a clear protection gap for women living with HIV to appear.
Protection gaps for HIV+ migrant women
To tackle the protection gap the Project asked ICW to find out about treatment and discrimination in women’s countries of origin, and to offer one-to-one advice. Asylum Aid looked for other ways to obtain protection through legal avenues.
In one case [CA v Home Secretary] the Appeal Court ruled that removing a mother living with HIV to her country of origin, where her child would become infected fatally through feeding, was the sort of inhuman treatment prohibited by Article 3 of the European Convention on Human Rights (ECHR). This led the way for other similar cases where the mother is forced to contribute to and observe the avoidable death of her child.
New ways to improve the immigration situation of some women living with HIV were identified by Asylum Aid. They include:
- Women whose children were HIV positive;
- 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;
- 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;
- Women from Zimbabwe (and possibly other countries) who would be discriminated against in treatment, because of their actual or assumed political opinions
- 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.
Recent developments in case law on Article 8 of the ECHR 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 each case.
Most women left unprotected against removal
However, the protection gap since the case of N decision still means that the most women living with HIV now have no right to be protected from removal from the UK simply because of HIV. These women will continue to live without formal immigration status in the UK with all the many problems this causes, 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.
‘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’
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