Deportation and Treatment for HIV-Positive Migrants

 

Scope of the Issue

HIV-positive individuals may undergo deportation for a host of immigration-related violations, or, in some countries, as a consequence of their HIV-positive status itself. States have an obligation to ensure medical care for immigration detainees at least equivalent to that available to the general population.[73] However, when, either as a consequence of HIV-related restrictions on entry, stay, and residence, or as part of deportation proceedings commenced on unrelated grounds, HIV-positive immigrants are taken into custody and detained pending outcome of an immigration case or deportation, adequate systems are not in place in many countries to ensure HIV/AIDS treatment.[74]

 

Under certain circumstances, international law prohibits deportation or permits withholding of deportation of persons living with HIV. The deportation of HIV-positive individuals needs to be broadly reconsidered by states under the international law principle of non-refoulement and additional human rights and humanitarian law provisions to ensure that HIV-positive individuals are not sent or returned to circumstances where treatment and family support are grossly inadequate. Furthermore, from a public health perspective, ensuring and coordinating continuity of treatment when HIV-positive individuals are deported to their countries of origin is imperative.

 

International Law

The principle of non-refoulement applies in international human rights and refugee law. In human rights law it has established an absolute prohibition on the deportation of a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment.[75] International refugee law prohibits the return of refugees to a territory where the refugee’s life or freedom may be threatened: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[76] Some domestic courts have held that HIV status can form the basis of membership in a particular social group for purposes of an asylum analysis under the principle of non-refoulement.[77]

 

 In some states, a form of protection from removal known as “complementary” protection exists. This often sets out the protection from non-refoulement based on human rights principles. Complementary protection can govern categories of people who claim that they cannot be returned to their country of origin based on human rights law or humanitarian principles but do not fit into traditional refugee definitions,[78] according a wider range of eligibility.

 

 

Case Studies

South Korea

South Korea is one of the 30 countries in the world that force HIV-positive foreigners to leave their borders.[79] Work migrants are tested for HIV and are detained and deported upon testing positive.[80] In 2008, the Korea Center for Disease Control and Prevention reported that 521 of the 647 foreigners diagnosed with HIV to date had been “forced to leave the country,” as the government routinely deported individuals who were found to be HIV-positive.[81] 

 

South Korea’s practice of deporting HIV-positive non-citizens was challenged in November 2008, when the Seoul High Court (upholding the Seoul Administrative Court) prevented the deportation of “Heo,” a Chinese citizen of Korean descent visiting his mother in Korea, who was tested for HIV during a required health check, found to be positive, detained and ordered deported. The court found that public health goals must be balanced against the rights to privacy and to receive medical treatment, and that detection and treatment rather than deportation are the most effective means of curbing the spread of HIV. However, notwithstanding this ruling, the Korean government introduced a parliament bill in December that would expand requirements under the Ministry of Justice’s E-2 visa policy (which largely affects foreigners seeking to teach English). Under the measure, immigration officials could require drug and HIV testing of any foreigner seeking a work visa.[82]

 

Saudi Arabia

Saudi Arabia relies on migrant laborers, many from South Asia, and these laborers constitute a significant proportion of the country’s population and an even greater percentage of HIV cases in the country. HIV testing is required of non-citizens for long term work permits, with visa denial and likely deportation if HIV test results are positive.[83] Reports describe migrants jailed upon discovery of HIV status, held, and deported from Saudi Arabia, often without any explanation or discussion of their condition. In one instance in 1994, 80 non-citizens were hastily deported after medical tests for the purpose of resident permits led public health officials to conclude that the individuals were HIV-positive.[84]  In 2005, press reports highlighted the case of one HIV-positive Palestinian migrant to Saudi Arabia, jailed in a cell (described by newspaper reports as a “crowded cage”) at the King Saud Hospital for Infectious Diseases for three months—along with two HIV-positive cellmates—receiving no medication except basic painkillers and anti-allergy medication.[85]  In 2005, CARAM Asia reported a case of a Filipino migrant worker in Jeddah, Saudi Arabia who, upon testing positive for HIV, was confined for 11 months in the hospital without any information on the progress of his case. Psychological trauma, job loss, and lack of adequate health care face migrants upon return.[86]

 

United States

When HIV-positive individuals are faced with deportation from the United States—on the basis of HIV-positive status or other grounds—US law provides several legal avenues that individuals seeking to avoid deportation could theoretically pursue. HIV-positive individuals could try to qualify for official status along the lines of the 1951 Refugee Convention[87] by obtaining status as a refugee based on membership in a persecuted social group.[88] In addition to the asylum procedure, all applications involved in asylum proceedings are considered in light of the prohibitions on refoulement both in the domestic Immigration and Nationality Act, and in the Convention Against Torture.[89]  

 

Deportees often face harsh conditions and lack of access to health care upon return from the United States to their countries of origin. Receiving country governments have complained about the effects of US immigrant deportation, especially when individuals with criminal convictions are deported without adequate notification or possibility of rehabilitation. In Guyana, legislation has authorized surveillance of some American deportees. In Haiti, criminal deportees are taken immediately to jail and held indefinitely under miserable conditions, where no medical treatment is provided for diseases including for HIV/AIDS.Some deportees do not survive such detention.[90] In El Salvador and Honduras, some deportees are subject to discrimination and violence and risk being hunted by vigilante squads.[91] A study on injecting drug users in Mexico, for example, suggests recent deportees have less access to health services than other drug users in the country.[92] 

 

Recommendations

In order to meet the requirements of international human rights law treatment to detainees and deportees, states worldwide should begin or continue to provide ART drugs to individuals in detention awaiting deportation on at least the same basis as that offered to the general population. As noted above, national governments have an obligation under international law to provide non-citizens in detention with medical treatment at least equivalent to that available to the general population. Instances of individuals held in detention, especially for months at a time, without access to medication must not be repeated.

 

Furthermore, states should reexamine deportation of HIV-positive individuals to countries where treatment and social support structures are inadequate, in accordance with international and regional law non-refoulement prohibitions on deportation and additional complementary bases of protection. In determining a standard for when an individual should not be removed, national governments could consider regional case law: The Inter-American Commission for Human Rights recently found in a decision on the AndreaMortlock case that the petitioner should not be returned by the United States to Jamaica and would face extraordinary hardship upon deportation, even amounting to a death sentence, under a two-part test considering 1) the availability of medical care in the country of removal and 2) the availability of social services and support, especially the presence of close relatives.[93] The European Court of Human Rights had previously set a similar test, but has subsequently interpreted its standard very narrowly.

 

As a matter of good practice, states—in cooperation with international agencies and donors—should attempt to make provision for continuity of treatment when deportation does take place. Prior to deportation, health officials in countries of deportation may work to coordinate action with health services in countries of removal to ascertain the availability of care, enroll deportees prior to deportation so as to make sure that waiting lists do not prevent continuity of care, and confidentially transfer medical records to a patient’s new physician. Providing a temporary supply of ART medication for self- or government-administration may be strongly recommended for PLHIV who are deported to countries in which anti-retroviral medication is not immediately accessible to newly arrived deportees. Immigration and health officials in deporting countries should consider the situation facing each deportee on a case-by-case basis with detailed communication and understanding of the HIV treatment situation in the country of removal. 

 

Finally, information from governments on the number of HIV-positive individuals who are deported needs to be made available, and further research undertaken on this issue by international agencies.

 

Additional Resources

Human Rights Watch, Deutsche AIDS Hilfe e.V., European AIDS Treatment Group and African HIV Policy Network, “Deportation of HIV-Positive Migrants,” 2009 (forthcoming).