HIV-Related Restrictions on Entry, Stay and Residence

Scope of the Issue

As of September 2008, 66 of the 186 countries in the world for which data were available placed special entry, stay, or residence restrictions on PLHIV. These restrictions take two general forms. The first is an absolute ban on entry for PLHIV, and the second involves restrictions on longer term (generally greater than three months) residence. The most comprehensive database to track these restrictions has found that among countries for which information is available, 14 countries either categorically refuse entry of PLHIV or require disclosure of the status (likely leading to exclusion). The remainder of countries that impose restrictions require documentation of HIV sero-status for longer-term stays. In such cases, an HIV-positive result for an individual applying for a long-term student or work permit in a country usually will lead to refusal of entry or deportation.[8]

As the World Health Organization has declared, HIV-related restrictions on entry, stay, and residence are not beneficial from a public health standpoint.[9] The Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have also unequivocally stated that restrictions on the rights to liberty of movement and choice of residence based on HIV status alone cannot be justified by public health concerns,[10] since, while HIV is infectious, it cannot be transmitted through casual contact.[11] HIV-related restrictions on entry, stay, and residence may, in fact, negatively impact public health for several reasons. First, these restrictions contribute to and reinforce stigma and discrimination against migrant PLHIV by lending credence to the idea that non-nationals are a danger from which the national population must be protected, and by prejudicially implying that PLHIV will act irresponsibly in transmitting the infection. The restrictions make it difficult to discuss HIV issues in public, decreasing prevention, testing, and treatment opportunities and uptake, and further isolating and marginalizing PLHIV. Singling out HIV for entry restrictions and mandatory testing has also been criticized by experts on the grounds that it creates a false sense of security in a country’s nationals that only migrants are at risk for HIV.

International Law

National restrictions on entry, stay, and residence that single out PLHIV broadly violate international human rights law provisions banning discrimination and upholding equality before the law.[12] Following the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) guarantees all persons the right to equal protection of the law without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.[13] The UN Commission on Human Rights has interpreted this provision to include discrimination based on HIV status.[14] States must respect this right for all individuals within their territory and subject to their jurisdiction, regardless of citizenship. Indeed, the Human Rights Committee – the ICCPR’s monitoring body – has noted that while a state has in principle the authority to determine whom to admit to its territory, in the context of discrimination considerations, aliens still enjoy the protection of the Covenant in relation to entry or residence.[15]

Restrictions against entry, stay, and residence based on HIV status also run contrary to related human rights principles. As UNAIDS has noted, the implementation of these restrictions has regularly violated the human rights principle of non-refoulement of refugees (which prohibits return to a place where life or freedom is threatened),[16] obligations to protect the family, protection of the best interests of the child, the right to privacy, the right to freedom of association, the right to information, and the rights of migrant workers.[17] These restrictions also affect the individual’s rights to seek asylum and to work, as well as the rights to education, the highest attainable standard of health, dignity, and life.

According to international human rights law, as set out for example in the Siracusa Principles, to avoid being classified as impermissible discrimination, any difference in treatment that has a negative impact on a particular group – e.g. persons living with HIV or AIDS – has to be justified by being necessary to achieve a compelling purpose and be the least restrictive (meaning least discriminatory) means of achieving that purpose.[18] However, while preservation of public health is a compelling purpose that might justify some forms of restrictions, HIV-related distinctions in entry, stay, and residence do not actually protect public health, and are too broad and coercive to be the least restrictive means to achieve this end.[19]

Case Studies

Labor Migrants

UNAIDS has determined that the greatest impact of HIV-related entry, stay, and residence restrictions lies on labor migrants,[20] of whom there are approximately 86 million worldwide.[21] Frequently, unskilled or semi-skilled labor migrants are subject to mandatory HIV testing prior to departure, are unable to work overseas if found to be positive, and are subject to regular mandatory testing during residence overseas, with summary deportation resulting from a positive test. A 2005 study found that HIV-positive Filipino migrant workers in numerous destination countries were deported without counseling or ability to claim unpaid wages or possessions, and were, in some cases, confined in a hospital pending deportation (in one case in Saudi Arabia for as long as 11 months).[22] Human Rights Watch has also documented pre-departure HIV testing without informed consent, confidentiality or access to test results of prospective migrant workers in Sri Lanka[23] and the deportation of migrants who test positive for HIV from Saudi Arabia.[24] These human rights violations are exacerbated by the fact that they take place with little or no effort to extend HIV prevention, treatment, support, or counseling geared specifically toward this population in either the home or destination countries.[25]

Short Term Travelers

The impact of restrictions on short-term entry, stay, or residence can be serious for affected individuals, including tourists, individuals seeking to visit family, and business travelers. When PLHIV are confronted with questions calling for HIV status disclosure on visa application forms, they must choose between either not disclosing their HIV status (potentially committing fraud and, if caught, risking future entry), and having to hide medication, or disclose their HIV status, and face refusal of entry.[26] Confronted with this dilemma, a 2006 study of HIV-positive travelers from the United Kingdom to the United States found that of the 239 patients taking antiretroviral therapy (ART) at the time of travel to the US, the majority travelled illegally without a waiver visa. Twenty-seven (11.3%) stopped ART during the period of travel, thus running the risk of developing drug resistance. Twenty-eight patients (11.7%) mailed their medication to the US in advance, but only 25% received mailed medication on time.[27] Overwhelmingly, individuals who stopped treatment reported doing so because of the US travel restrictions, fear of being searched, and discovery of their illness.[28]

Recommendations

An increasing awareness of the discriminatory nature and deleterious effects of HIV-related travel laws has begun to prompt change. International agencies, human rights and HIV/AIDS organizations must continue to demand that such restrictions be repealed immediately and entirely. In instances in which these laws and policies are not rescinded, at a minimum national governments need to reform testing practices so as to conform with basic human rights standards. Conducting voluntary testing, obtaining informed consent, and providing adequate pre- and post-test counseling are key to ensuring that the rights of involved individuals receive a minimum measure of respect. Confidentiality of test results should also be strictly maintained. Policies subjecting individuals to expulsion must always be coupled with protection of that individual's right to challenge his or her deportation through due process of law.[29]

Regardless of a country’s policies on HIV-related travel restrictions, provision of adequate HIV/AIDS prevention, care, and treatment services for migrants and citizens alike is essential. The experience of discrimination, dislocation and disruption in social networks around migration is closely linked to HIV risk. Legislative priority and government resources should be redirected from maintaining costly and discriminatory entry, stay, and residence restrictions on PLHIV, and refocused on providing prevention, care, and treatment programs that target and serve non-citizens and citizens. The creation and maintenance of such programs will be the truly effective long-term strategy in combating this pandemic from both a public health and a human rights perspective.

Additional Resources

Joseph J. Amon and Katherine Wiltenburg Todrys, “Fear of Foreigners: HIV-Related Restrictions on Entry, Stay, and Residence,” Journal of the International AIDS Society, vol. 11, no. 8, 2008, http://www.jiasociety.org/content/11/1/8.