A decision in the High Court means that HIV-positive refused asylum seekers are entitled to free HIV treatment and care for as long as they remain in the UK.
The ruling, issued on April 11th by Mr Justice Mitting, means that anyone who can show that they are an “ordinarily resident” in the UK is entitled to free NHS treatment.
Mr Justice Mitting ruled that all asylum seekers who were granted temporary admission to the UK (whether at the port of entry or later at an immigration office) who have had their claim for asylum rejected, are in the UK legally and therefore “ordinary resident.” All asylum seekers should be provided with free NHS care until their removal from the UK.
The test case involved a refused Palestinian asylum seeker who was denied free NHS care for chronic liver disease because his hospital claimed he was not in the UK legally. The case was supported by HIV charities, including the National AIDS Trust.
In practice the ruling means that virtually everybody with HIV in the UK is now entitled to free anti-HIV treatment and care. Free treatment at a hospital or GP can be secured by producing a form called an IS96 which all asylum seekers are given when they first make a claim.
Other categories of individuals who are in the UK legally are also classed as “ordinary residents” and entitled to free NHS care, including people who entered the UK on a valid visa and applied for an extension of this visa or leave to remain in the UK before the visa expired. But people who have overstayed their visa and not made an application for asylum, as well as those who are completely undocumented are not covered by this ruling and are not entitled to free treatment and care.
The Department of Health has been granted leave to appeal. But NHS rules mean that once an overseas visitor has started a course of treatment, this can be continued for as long as the individual remains in the country. An HIV-positive individual would not need to be taking antiretroviral therapy, but simply be under the care of a clinic and having tests to monitor their health.
And the ruling could also have implications for refused asylum seekers who are being pursued for the costs of their NHS care. In effect, the judgement means that they should never have been charged in the first place and therefore cannot be pursued for costs. Furthermore, individuals who have paid money can claim this back.
But the judge refused a claim that there was a human right to NHS treatment. He said that any discrimination in the rules was justifiable so as to discourage “health tourism.”