Introduction
Since the emergence of the HIV epidemic in the 1980s, migrant populations have repeatedly been recognized by the international community as a vulnerable group in the risk, spread, and prevention of HIV/AIDS.[1] Some countries, embracing an anti-migrant approach, have even sought coercive measures to try to keep infected foreigners out of their borders, through HIV-related restrictions on entry, stay, and residence.[2] Either as a result of HIV-related restrictions on entry, stay, and residence, or as part of deportation proceedings commenced on unrelated grounds, HIV-positive migrants may be taken into custody and detained pending outcome of an immigration case or deportation. In such circumstances, international law has developed a framework that broadly protects the right to health of persons deprived of their liberty. States have an obligation to ensure medical care for detainees, including immigration detainees, at least equivalent to that available to the general population.[3]
Despite this obligation, however, adequate systems are not in place in many countries to ensure HIV/AIDS treatment for detainees pending deportation. In 2007, Human Rights Watch documented in its report Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States the sub-standard policies, procedures and supervision governing HIV/AIDS care for migrants detained in US custody, leading to treatment that was delayed, interrupted, and inconsistent to an extent that endangered the health and lives of the detainees.[4] Human Rights Watch has further reported in Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia the detention of migrant workers in Saudi Arabia under poor conditions with inadequate medical care.[5]
Building on Chronic Indifference and Bad Dreams, this report considers the deportation of HIV-positive migrants from countries worldwide. Under certain circumstances, international law prohibits deportation or permits protection from deportation of persons living with HIV. National governments need to broadly reconsider the deportation of HIV-positive individuals under the international law principle of non-refoulement and additional human rights and humanitarian law provisions to ensure that HIV-positive individuals are not returned to circumstances where treatment and social support are inadequate, the return to which would put them at risk of inhuman or degrading treatment. Furthermore, Human Rights Watch, Deutsche AIDS-Hilfe, the European AIDS Treatment Group, and the African HIV Policy Network urge states to ensure deportees’ continuous access to treatment as a matter of good practice.
[1]Ivan Wolffers, Sharuna Verghis and Malu Marin, “Migration, Human Rights, and Health,” The Lancet, vol. 362, December 13, 2003, pp. 2019-20. See also Prerna Banati, “Risk Amplification: HIV in Migrant Communities,” Development Southern Africa, vol. 24(1), March 2007, pp. 205-23. United Nations International Institute for the Advancement of Women (UN-INSTRAW) and South African Institute of International Affairs (SAIIA), “Gender, Remittances and Development: Preliminary Findings from Selected SADC Countries,” 2007, http://www.un-instraw.org/en/downloads/final-reports/index.php (accessed July 20, 2009), p. 50. Joint United Nations Programme on HIV/AIDS (UNAIDS), “Population Mobility and AIDS: UNAIDS Technical Update,” UNAIDS Best Practice Collection, February 2001, p. 4.
[2]While no single definitive source has addressed the existence of these laws, the most comprehensive database to track them has found that, 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 people living with HIV. Deutsche AIDS-Hilfe e.V., “Quick Reference: Travel and Residence Regulations for People with HIV and AIDS - Information for Counsellors in AIDS Service Organizations - 2008/2009,” Lemmen, Karl; Wiessner, Peter; 8th edition, Berlin, September 2008. See also “The Global Database on HIV Related Travel Restrictions,” www.hivtravel.org (accessed July 20, 2009). An additional 22 countries may have special restrictions but contradictory and imprecise information only are available. Deutsche AIDS-Hilfe e.V., “Quick Reference.” See also Joint United Nations Programme on HIV/AIDS, “HIV-Related Travel Restrictions,” March 4, 2008, http://www.unaids.org/en/KnowledgeCentre/Resources/FeatureStories/archive/2008/20080304_HIVrelated_travel_restrictions.asp (accessed June 18, 2009). UNAIDS and International Organization for Migration (IOM), “UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions,” 2004.
[3]See, e.g., International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, arts. 12(1) and 2.2. International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, arts. 6, 7 and 10. For a comprehensive discussion of the international legal instruments, resolutions, and model standards related to detainee health, see Rick Lines, “The Right to Health of Prisoners in International Human Rights Law,” International Journal of Prisoner Mental Health, vol. 4(1), 2008, pp. 3-53. Rick Lines, “From Equivalence of Standards to Equivalence of Objectives: The Entitlement of Prisoners to Health Care Standards Higher than Those Outside Prisons,” International Journal of Prisoner Health, vol. 2(4), 2006, pp. 1-12.
[4] Human Rights Watch, United States – Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States, vol. 19, no. 5(G), December 2007, p. 2.
[5]Human Rights Watch, Saudi Arabia – Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia, vol. 16, no. 5(E), July 2004.