The Home Office failed to put in place systems to protect detainees with HIV, a high court judge has ruled, after a man was denied lifesaving medication for four days.
The landmark ruling found that in failing to adequately care for people with HIV the Home Office breached article 3 of the European convention of human rights, which protects against inhuman and degrading treatment.
The 28-year-old man, referred to only as CSM, went without his antiretroviral medication for three days after he was detained by Home Office officials following an interview about his claim for asylum in the UK.
CSM was diagnosed with HIV as a child, shortly after arriving in the UK in 1996, and his condition requires him to take medication at the same time each day to prevent the virus “rebounding”.
He was deported to the Democratic Republic of the Congo (DRC) in 2017 after being jailed for attempted robbery and possession of a firearm, but managed to return the following year and claimed asylum, alleging he had been tortured in the DRC shortly after his arrival.
When CSM attended an asylum screening interview on 8 August 2019, he was detained and sent to an immigration removal centre (IRC). Staff at Harmondsworth IRC, near Heathrow airport, were able to obtain HIV medication at about midnight on 9 August 2019, but CSM was not given it until about 4pm on 11 August 2019, more than three days after his previous dose.
The ruling found that along with a failure to put in place appropriate systems for protecting detainees with HIV, the home secretary failed to take reasonable steps to avoid a real and immediate risk of harm to the man.
CSM’s barrister, Chris Buttler QC, told a hearing in June that immigration officials “knew or should have known that the claimant was at a real and immediate risk of harm in the absence of antiretroviral medication”.
In his ruling, Mr Justice Bourne found that the Home Office was in breach of article 3 by failing to have “a sufficient system” in place to deal with HIV-positive detainees. He said: “Healthcare staff in the present case did not apply their training and there is no sign of any relevant training being provided to immigration officers.”
The judge said the British HIV Association [jointly with the National Aids Trust] had published guidance, “which was created specifically for immigration detention, with input from the Home Office”, on how staff should care for detainees with HIV. But there was “confusion” among staff about whether that guidance was Home Office policy, which Mr Justice Bourne described as “unedifying to say the least”.
The judge said CSM was “an unreliable witness” and found he had probably taken his medication the morning before travelling to his interview.
He also found that CSM did not receive his HIV medication on 9 August 2019, when it was obtained, because of his “unwillingness to consent”, which “should not be laid at the defendant’s door”.
“However, there was an entire and unexplained failure to make the medication available on 10 August 2011,” Mr Justice Bourne said.
Jamie Bell of Duncan Lewis Solicitors, who brought the legal challenge, said: “This is a remarkable precedent and marks the first time wherein the systems operated by the Home Office within immigration detention were found to be so flawed as to amount to inhumane and degrading treatment in breach of Article 3 of the European convention on human rights.”
Home Office sources said they were considering how they would improve understanding across staff of how to obtain HIV medication and of the importance it was not missed, in line with the court’s findings.
A Home Office spokesperson said: “We take the welfare of those in our care extremely seriously. All immigration removal centres have dedicated healthcare facilities run by doctors and nurses providing 24/7 care.”
• This article was amended on 2 August 2021 to clarify that the new guidance for immigration detention centres was published jointly by the British HIV Association and the National Aids Trust.