Deporting - Ignoring Human Rights

posted: 28/09/2009

National governments should reconsider their policies for deporting people living with HIV, Human Rights Watch said in a new report.

The organisation calls on governments, international agencies and donors to ensure that HIV-positive migrants have access to antiretroviral therapy when detained and to ensure that, if deported, migrants are able to maintain access to treatment and care.

The report was co-authored with the African HIV Policy Network, Deutsche AIDS-Hilfe and the European AIDS Treatment Group, and describes cases from a wide range of countries around the world.

International human rights and refugee law has long prohibited deportations to a state where the person deported would be at risk of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment.

However the authors argue that national deportation procedures are often insufficient or underdeveloped to protect the rights of people living with HIV against return to such conditions. If treatment or social support is inadequate, they believe that this can amount to inhuman or degrading treatment.

The European Court of Human Rights is one of the bodies that has interpreted this human rights obligation in a narrow way, so that if antiretroviral treatment is in principle available in the receiving country and if the disease has not yet reached a terminal stage, deportation would not be considered to constitute inhuman or degrading treatment.

The authors note that in some situations individuals may be deported for reasons that are unrelated to their HIV status. However countries which have restrictions on entry or residence of foreigners with HIV may deport people because of their HIV status alone.

UAE tops for deportations

For example, in 2008 the United Arab Emirates deported 1,518 people infected with HIV, hepatitis B and C, or tuberculosis. Migrant workers are subject to mandatory HIV testing, usually without counselling, and those who test positive are detained, without antiretroviral treatment, and then returned to their country of origin, with no referral system to medical services.

A comparable system in South Korea was successfully challenged in the Seoul High Court on public health and human rights grounds. However mandatory testing for foreign workers remains in place.

South Africa has a large number of migrant workers, mostly from other countries in the region, and while it does not have restrictions on residence based on HIV status, individuals may be deported for other reasons. Human Rights Watch believes that the deportation of people with HIV to neighbouring countries where medical care is inadequate is against both the South African constitution and international treaties.

It notes cases where migrant workers, sometimes co-infected with multi-drug resistant tuberculosis, have been left at the border of their home country, without any treatment or referral. The authors say that this can amount to a death sentence.

The United States is also criticised for not ensuring access to treatment either while people are detained before deportation, or at their destination.

The report notes that even if antiretroviral treatment is available in principle in a country, regional unavailability, an individual’s lack of understanding of the health system, language barriers, lack of community ties, waiting lists, lack of second or third-line drugs, and medication shortages can all make treatment unavailable in practice.

3 Steps for governments

The report’s authors recommend that national governments:

• Publish comprehensive information about HIV-positive individuals deported, including the numbers of individuals removed, grounds for removal, and countries to which they are deported.
• Review national standards on deportation of people living with HIV to ensure compliance with international prohibitions on sending individuals to situations where they may face inhuman or degrading treatment.
• Where feasible, contact health authorities and providers in each deportee’s country of origin, devise a plan for continuing to assure care without interruption, and provide a temporary medication supply if necessary.

Speaking at an event to launch the report at the House of Commons in London, Titise Kode of the African HIV Policy Network noted that the report described situations across the world that also had parallels in the United Kingdom.

She called for greater coherence between the policies of the Home Office, the Department of Health and the Department for International Development, and urged the UK government to ensure that deportation or removal did not lead to withdrawal of treatment.

Online edition Returned to risk: deportation of HIV-positive migrants. Human Rights Watch, 2009.

pdf version Returned to Risk: deportation of HIV-positive migrants. Human Rights Watch, 2009

Source

Using HIV Detention and Removal Guidelines

posted: 01/09/2009

Advice on how to make full use of the NAT-British HIV Association (BHIVA) new guidelines on 'Detention, Removal and People Living with HIV' has been circulated by Medical Justice. Migrants living with HIV should not be removed if this breaks these guidelines. Using the guidelines has halted some recent removal attempts.

A number of removals of HIV+ detainees that Medical Justice are involved with have been stopped because the NAT and BHIVA guidelines were breached.

Below Medical Justice explains how to help someone living with HIV by using the guidelines.

The new NAT-BHIVA guidelines (page 13) state that;

• 3 months supply of anti-retroviral medication should be supplied to people with HIV on removal
• they should also be given a letter for their future treating physicians, and
• contact details of trusted HIV support organisations in the country the detainee is being removed to.

Page 12 of the guidelines states that

'Upon notification that an HIV positive detainee is to be removed, IRC [immigration removal centre] healthcare staff should inform the local HIV specialist of the detainee's pending removal and ensure the detainee is provided with sufficient medication. Normal NHS clinical practice is to dispense three months' supply of ARV medication. This will cover detainees during the removal process and arrival in their destination country.'

In the case of Yarl's Wood, the local clinic is Bridge House GUM clinic, at Bedford Hospital, 01234 792146.

Less than three months medication?

These guidelines are endorsed by Dr Celia Grummit of the IRC Healthcare Steering Group (see page 4 of the guidelines). Given her position, and the Secretary of State's avowed policy to provide NHS equivalent care to immigration detainees (see Home Office Operating Standards Manual for IRCs), if a person facing removal has not been provided with 3 months medication, removal might be stopped on the basis that the guidelines have been breached.

Need to start treatment?

If it is clear that someone needs to start anti-retroviral (ARV) treatment but cannot do so before removal (e.g. because the necessary resistance tests have not been done yet), legal representatives might be able to make representations to the effect that the person should not be removed until it is possible to provide them with 3 months appropriate anti-retroviral medication.

Indications that someone may need to start on ARVs may include -

• the person is HIV+,
• has a low CD4 count,
• has a letter from a specialist that they need or may need ARVs (this could include a letter following their HIV diagnosis), or
• they have been on ARVs in the past.

Tests have to be done before someone is started on ARVs.

Stopping Removals that Breach the Guidelines

What you can do when someone is scheduled to be removed in breach of the guidelines ;

• Call up the local specialist clinic (listed in the BHIVA guidelines p 20-21) and find out whether they have been informed of the removal and whether they are supplying 3 months of appropriate medications.
• If they have not been informed and can't provide the necessary medication, provide the detainee's legal representative with a copy of the BHIVA guidelines and information on the person's medical condition and possible complications, and ask if legal representations can be made.
• If there is no legal representative or the legal representative is not able/willing to make epresentations on the basis of the BHIVA guidelines, you could contact the MP (either the MP in whose constituency the detainee was living prior to detention or the MP in whose constituency the detention centre is) and/or the detainee could directly make their own representations to the responsible home office caseworker.

Fitness to travel / is the detainee medically stable?

Page 10 of the guidelines says "At least 95% adherence to treatment is required , as even one or two missed doses can seriously compromise both the efficacy of therapy and lead to drug resistance. This means missing no more than one dose a month if a detainee is taking once-daily therapy, or two doses a month if a detainee is taking twice daily therapy. IRC healthcare staff should ensure that every detainee in need gets their medication each day."

If medication has been missed then removal may need to be delayed until it has been established that the medication is still effective.

Page 13 says "Final judgement as to whether an HIV positive detainee is medically stable and is fit to travel must be determined on a case-by-case basis and should always rest with the IRC GP in consultation with HIV specialists." Here are some of the main medical issues that should be considered -

• the person is pregnant or has given birth less than six months previously
• the person is awaiting an HIV test result or appropriate post-test counselling and a baseline assessment to clarify clinical condition
• the person has had a recent, new HIV diagnosis, or having just started ARV therapy or a new drug regime
• the person has a co-infection with another sexually transmitted infection or tuberculosis
• the person has co-existing mental health issues
• there are ongoing medical complications

Referring a case to Medical Justice / getting advice from Medical Justice

Please complete a referral form (a link to which can be found at the bottom of the About making referrals to Medical Justice webpage). Please note that making a referral means you are making a commitment to gather all necessary information and progress the case yourself as far as possible.

So you must ensure that you ascertain all relevant information about the detainee mentioned in these 'using the BHIVA guidelines' and include it in the referral form.

email contact   

phone 07807 726546

Note on children detained with an HIV+ parent
Some removals of families with a parent who is HIV+ have been stopped by the European Court of Human Rights (ECHR).

Medical Justice has no information on ECHR's basis on stopping these removals, if they are stopping all such removals, or for how long ECHR may stop such removals. You may want to contact ECHR or make an application to ECHR about such removals.

Medical Justice does not give immigration advice
Medical Justice is not qualified to give immigration advice and suggests that immigration advice is always sought in every case from a qualified advisor.

This advice on using the BHIVA guidelines is from Fadiga & Co
Advice is available from Hani Zubeidi at Fadiga & Co 0208 673 6699

Vouchers Hardship for Asylum "Shocking"

posted: 06/10/2008

The Refugee Council today published a  report into the consequences of a government policy that forces some asylum seekers to live on vouchers while they are in the UK.

Individuals, couples and families with children whose claims have been refused but who are still in the country, either because they are waiting to return home voluntarily or because it is not safe for them to return home, are being given £35 in vouchers per week to support themselves.

In 2000, the government introduced vouchers for people seeking asylum, but was forced to end this policy eighteen months later following widespread condemnation that it was inhumane. Since then, it has in fact continued this policy by stealth, giving vouchers to people who are at the end of the process and only entitled to limited support.

The Refugee Council’s report reveals the devastating impact this policy has had. People living on vouchers are hungry and in poor health. They are forced to walk miles to the nearest supermarket that will accept the vouchers, as they have no cash for public transport. Families are struggling to buy nappies and other provisions for their babies, and some are so desperate they are exchanging £35 in vouchers for £25 in cash.

Donna Covey, Chief Executive of the Refugee Council said:

“The evidence contained in this report is truly shocking. Vulnerable people, often with babies and very young children, are being forced into severely impoverished circumstances as a result of a policy which this very government recognised as unacceptable seven years ago and abolished.

“These are people who are fully co-operating with the authorities, who are in many cases just waiting to return home as soon as they can, or who are from places like Zimbabwe where it is not safe to return. They have no choice but to remain here for the time being, and are not allowed to work. Forcing them to live like this is disgraceful.

“This situation is both appalling and unsustainable. The government must end this policy immediately, and offer people cash support. But the real solution lies in letting people work while they are here, allowing them to contribute to the communities in which they live and not forcing them to rely on inadequate state handouts.”

The full report is available at www.refugeecouncil.org.uk/s4vouchers.