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Hastings International and Comparative Law Review

Authors

Ruly Tafzil

Abstract

This year, millions will suffer persecution and death as a result of their HIV-positive status and AIDS-related illnesses. In the face of this morbid reality stands the promise of refuge offered by the international community, laid out in instruments such as the Convention Relating to the Status of Refugees and the European Convention on Human Rights (ECHR). This note compares and critiques the means by which HIV-positive persons may claim protection in the United States and the United Kingdom. In the United States, HIV-based claims for asylum were predominantly characterized as claims of persecution on account of a particular social group based on HIV-status. These claims faced difficulty in proving harm rising to the level of persecution and are seldom granted. Claims based exclusively on a lack of medical care and the likely death of the claimant enjoy no legal basis under asylum law and were almost universally denied. In contrast, in the United Kingdom cases involving HIV status based claims were characterized exclusively as Article 3-based claims under the ECHR, where a lack of medical care and the likely death of the claimant would amount to inhuman or degrading treatment. However, these claims also suffer from little success as claimants must be in a near death state and suffer persecution unique to themselves to be granted protection.

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