HIV refugee goes to court to get baby milk

An asylum-seeker whose HIV status stops her breast-feeding her three-month-old baby took the Government to court yesterday over its refusal to give her free milk.

The Ethiopian woman, who cannot be named for legal reasons, applied for a judicial review of a decision – made on the grounds that she is an asylum-seeker – not to provide her with tokens to obtain formula milk for her daughter. If the woman, referred to in the High Court proceedings as T, succeeds, other asylum-seeking mothers could become entitled to a similar benefit.

The Home Secretary and Health Secretary are accused of breaching the mother's and baby's human rights and failing to do all that could be done to protect the lives of those in a vulnerable position.

With the backing of the Child Poverty Action Group, the woman's lawyers are challenging government assertions that asylum-seekers are generally not entitled to social security benefits.

Dinah Rose, appearing for T, told Mr Justice Jowitt that the Government's position was unreasonable and unlawful because asylum-seekers were entitled to the same benefits as those on income support.

Ms Rose said: "As the Secretary of State for Health has decided to maintain a scheme for the provision of free milk to babies living in poverty to safeguard their nutrition and accordingly their health, it is neither rational nor lawful to exclude from that scheme babies whose mothers are asylum-seekers, or babies whose mothers are infected with HIV."

The refusal to provide milk tokens for asylum-seeker babies was an unlawful exercise of ministerial powers which thwarted the intention of Parliament to protect the health of babies being brought up in poverty, in breach of the European Convention on Human Rights, she said.

Ms Rose said T wanted to be provided with tokens for formula milk, costing between £6 and £7 a week.

Asylum-seekers received a lower level of financial support, currently £71 a week, than those on income support, who received £102.

The Home Secretary has given an undertaking to provide an additional £7 a week support to T pending the outcome of her challenge.

The judge observed that, although no other similar cases were listed to come before the courts, yesterday's hearing amounted to a test case.

"If it succeeds, quite a number of other mothers will be knocking on the door saying 'Can I have my milk tokens please?'," he said.