Access to Antiretrovirals for International Migrants

 

Scope of the Issue

Since the emergence of the HIV epidemic in the 1980s, public health officials have recognized that migrant populations face special risk of HIV infection.[52] However, despite the long recognition of migration’s relationship to HIV vulnerability and recent calls by international bodies to address migrant health needs,[53] states have largely failed to ensure that migrants have access to HIV treatment.  Although governments have committed themselves to provide “universal access”[54] to HIV treatment and have specific obligations under international human rights law to ensure that HIV treatment (specifically, antiretroviral therapy or ART) is provided to migrants as part of their duty to realize the right to health without discrimination, access to ART for migrants remains largely unrealized. Few states have explicitly recognized ART as part of the core minimum of health services to be provided without discrimination, including as to citizenship, for migrants within their borders.

 

Given the global scale and frequency of migration worldwide, a public health strategy toward HIV/AIDS prevention and treatment cannot include discrimination against non-citizens in provision of ART, as denying such treatment will only serve to perpetuate transmission and – for those already infected – can lead to illness, the development of drug resistance, and death.[55] The development of HIV treatment systems geared toward migrants is necessary to achieve universal access to HIV treatment and to meet the needs of the world’s significant and growing population of international migrants.  

 

International Law

International law provides for the basic right to the highest attainable standard of health, and requires states parties to take steps individually and through international cooperation to progressively realize this right via the prevention, treatment, and control of epidemic diseases and the creation of conditions to assure medical service and attention to all.[56] International law also establishes the basic principles of non-discrimination and equality.[57] Taken together, these rights imply provision of a right to access a core minimum set of health care services, including ART, without citizenship-based discrimination.

 

According to the Economic, Social and Cultural Rights Committee, the Convention on Economic, Social and Cultural Rights’ monitoring body, States must guarantee certain core obligations as part of the right to health, including ensuring non-discriminatory access to health facilities – particularly for vulnerable or marginalized groups – and providing essential drugs.While the Committee notes the progressive nature of the right to health, it also points to the fact that states must immediately take steps to realize the right to health, and must immediately guarantee the exercise of the right without discrimination of any kind.The right to health is thus centrally linked to the right to non-discrimination. More specifically with respect to migrants, the Committee notes that “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”[58]Thus, a prohibition against discrimination against non-citizens in receiving health care, and an immediate and core obligation to eliminate discrimination, emerge from the Committee’s findings.

 

Additionally, the Committee on the Elimination of Racial Discrimination has called on states to adopt measures including those that would remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health; and those that would ensure that States parties respect the right of non-citizens to an adequate standard of physical and mental health by refraining from denying or limiting their access to preventive, curative and palliative health services.[59] The International Convention on the Rights of Migrant Workers also explicitly guarantees the rights of migrant workers and their families to emergency medical care, providing them with medical care “urgently required for the preservation of their life or the avoidance of irreparable harm to their health” on an equal basis as a state’s nationals, without regard to irregularity of status.With respect to additional health services, the Convention guarantees migrant workers equality of treatment with nationals in access to social and health services if requirements for participation in those schemes have been met.[60]

 

Case Studies

South Africa

Under the South African Constitution, individuals with irregular legal status are accorded a wide range of human rights, including the rights to access to emergency and basic health care,and ART.[61] Asylum seekers and refugees are accorded free care if they are indigent, and assessed according to the same means test used to evaluate South African citizens if they are not.  The Department of Health has issued memoranda clarifying that these rights apply equally whether the patient has documentation or not.

 

However, Human Rights Watch research, as well as NGO and media reports, have described a striking gap between South Africa’s inclusive policies and the reality of access to health care for refugees, asylum seekers, and especially undocumented migrants. Some public clinics demand a South African identification document before offering health care, denying treatment for those without identification papers.[62] Asylum seekers have experienced continuing difficulties accessing ART.[63]  Human rights organizations and journalists have documented verbal abuse, sub-standard treatment, insensitivity by providers, unusually long wait times, and outright denial of services facing migrants seeking health care.[64] Others are illegally charged prohibitive fees for treatment or medication, or told they must carry a green South African citizenship card in order to receive basic services. Undocumented Zimbabweans in need of health care have overwhelmed South African charities and churches,and been turned away from government clinics when unable to present citizenship papers.[65]  Basotho mineworkers, infected with HIV and multi-drug resistant tuberculosis (MDR-TB) have faced deportation and been left at the border of their home country without any treatment or referral to local health services for treatment.[66]

 

Thailand

The Thai government has developed a program to register migrants and regularize their status.  Registration allows migrants access to basic health care services through the national health plan. However, ART is not considered part of the package of public health care involved in registration, except for pregnant women.[67]  Antiretrovirals are distributed to Thais through a separate scheme than registered migrants’ coverage, effectively barring non-Thais.[68]

 

Additionally, registration is problematic for migrants because of steep registration fees, the fact that migrants cannot change employers once registered, and migrants are not able to move outside the province in which they are registered.[69]  Registration eligibility changes annually and restrictions stemming from a lack of coverage of typical migrant job categories, and linkage of registration to specific places of employment keep many from accessing the registration program.[70] Further, while migrants themselves are entitled to have possession of their registration, work permit, and health insurance documents, employers often hold these documents and migrants find copies of the documents insufficient for actually obtaining care.[71]A 2004 Physicians for Human Rights Report dealing with Burmese migrants in Thailand called for HIV care and treatment for migrants on equal terms as Thai citizens, as “discriminatory denial of care and treatment virtually condemns them to living with (and quickly dying of) AIDS.”[72]

 

Recommendations

In order to realize the requirements of international human rights law to provide a core minimum of health services without discrimination, states worldwide must provide essential ART drugs to migrants on the same terms as to citizens. In order to realize this commitment, and to ensure the availability of ART in practice, states should immediately offer free or low-cost ART to non-citizens on the same terms as to citizens. This includes providing free or low-cost ART for Prevention of Mother-to-Child Transmission (PMTCT) to non-citizen HIV-positive pregnant women and removing all barriers to their enrollment in such programs. Furthermore, states should work to establish cross-border treatment mechanisms and improve continuity of care by taking steps to standardize health passports across borders, coordinate treatment regimes in neighboring countries, create an international registry of patients, and review ART guidelines to ensure lack of bias against mobile populations. States also need to eliminate barriers facing refugees and other migrants officially granted access to care in receiving services, including through health provider education on patients’ rights. To implement these policies, states must allocate sufficient funding for provision of ART to migrant populations.

 

International donors, as well, have the capacity to improve migrants’ access to ART.  Crucial steps toward improving access may be made by international donors through conditioning funding for ART drugs for the general population on the equal availability of these drugs to both citizens and non-citizens, including non-citizens with irregular or undocumented status. International donors may also support and supplement states’ efforts to provide cross-border continuity of care by assisting with every aspect of the development of cross-border systems noted above, and additionally aiding in the development of a confidential international patient registry system, providing translators and transportation for migrants, and providing counseling and information for migrants on health centers at other locations.

 

Furthermore, international agencies and NGOs have a significant role to play in increasing migrants’ access to ART by writing equal access for migrants into international ART policies and guidance documents, and assisting state governments in doing so for national policies. As with international donors, international agencies and NGOs may also supplement national efforts toward creating cross-border and migrant-friendly treatment. Furthermore, international agencies and NGOs may push for the establishment of health care centers serving migrants in geographic areas frequented by migrants.

 

Additional Resources

Joseph J. Amon and Katherine Wiltenburg Todrys, “Access to Antiretroviral Treatment for Migrant Populations in the Global South,” Sur – International Journal on Human Rights, vol. 10, 2009.