International Law
Prohibitions on Deportation: The Principle of Non-Refoulement
Under international law, states have the right to control their borders and decide whom to admit or to deport, following appropriate procedures and limited by considerations of non-discrimination, prohibition of inhuman treatment, respect for family life, and other human rights and refugee law protections.[6] Chief among these limitations are international law protections against refoulement.
The principle of non-refoulement, articulated in international refugee and human rights law instruments, establishes an absolute prohibition on the forced departure 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.[7]
Under international human rights law, states have an obligation to refrain from refoulement of all individuals. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Article 3, absolutely prohibits states from sending individuals to a country in which there is a risk of torture[8]; the International Covenant on Civil and Political Rights (ICCPR), Article 7, has been interpreted to prohibit deportation of a person to a country where he faces a real risk of torture or “cruel, inhuman or degrading treatment or punishment.”[9] Furthermore, the prohibition on returning an individual to torture, cruel or inhuman degrading treatment or punishment has been deemed to rise to the level of customary international law.[10] Regional human rights instruments also include the non-derogable prohibition on torture, cruel, inhuman or degrading punishment and treatment, which extends to situations in which the forced removal of an individual would place them at risk of such prohibited treatment.[11]
At the regional level, the European Court of Human Rights (ECtHR) and the Inter-American Commission on Human Rights have each established case law laying out when deportation of people living with HIV is prohibited on human rights grounds. Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) declares that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[12] In a landmark 1997 case, D v. United Kingdom, a St. Kitts native argued that his removal from the United Kingdom would violate Article 3 of the ECHR and subject him to inhuman and degrading treatment. The court prohibited his deportation, finding that the combination of the advanced stage of the applicant’s HIV/AIDS, lack of available treatment in St. Kitts, and lack of any family to care for him was decisive and formative of “exceptional circumstances” such that removal would amount to inhuman treatment.[13]
However, this standard has since been narrowly interpreted, and the ECtHR has not found on the facts that any other deportation of a person living with HIV constituted a violation of the ECHR because of lack of treatment or support in the country to which the person was being deported.[14] More recent cases have re-iterated the ECtHR’s position that the fact that an individual’s circumstances in the receiving country would be less favorable than those he or she currently enjoys in the host country is not sufficient to constitute a violation.[15] Instead it has narrowly interpreted the “exceptional” standard set out in D, excluding cases in which the deterioration in the applicant’s (physical or mental) health condition is considered speculative.[16] The Court has repeatedly found that if treatment is in principle available in the receiving country, and the disease has not yet reached a terminal stage, removal would not constitute inhuman or degrading treatment.[17] Over time, this body of case law has left the ECtHR with a three-fold test that narrowly considers (1) the applicant’s present medical condition and whether it is at an advanced or terminal stage, (2) the availability of family and friend support in the country of origin, and (3) the availability of medical care in the country of origin.
In 2008, the Inter-American Commission on Human Rights held that deporting a person living with HIV to a country with substandard health care for persons with HIV would violate the American Declaration’s protection against “cruel, infamous, or unusual punishment.”[18] Andrea Mortlock was 15 in 1979 when she arrived in New York from Jamaica, leaving behind the abusive household where she had lived since her mother, years earlier, had left for work in the United States. In 1987, she was convicted of selling cocaine and served a year in prison. A legal permanent resident of the United States with a US-citizen daughter and son, Ms. Mortlock was ordered deported in absentia in 1995 based on her criminal conviction. However, Ms. Mortlock was HIV-positive, and required a complicated medical regime that was unavailable in Jamaica in order to survive. In 2005, despite US federal authorities’ claims that her illness had no bearing on her immigration proceedings, Ms. Mortlock and her attorneys filed a petition with the Inter-American Commission on Human Rights in a last-ditch effort to halt her deportation.[19] Ms. Mortlock argued that deporting her to Jamaica would be equivalent to a death sentence because of the absence of adequate AIDS treatment and because of the severe discrimination she would face in that country.[20] In its determination, the Commission noted that Andrea Mortlock was in the advanced stages of a terminal and incurable illness. It determined that the standard was whether the deportation would create “an extraordinary hardship” that could amount to a death sentence given two principal considerations: “(1) the availability of medical care in the receiving country and (2) the availability of social services and support, in particular the presence of close relatives.”[21] Based on this test, and given Ms. Mortlock’s particular circumstances, the Commission recommended that the United States refrain from deporting Ms. Mortlock.[22]
Regional Tests for Deportation of People Living with HIVEuropean Court of Human Rights
Inter-American Commission on Human Rights
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Following the principle of non-refoulement, states are also prohibited from removing individuals protected by the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. In international law, a refugee is defined as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[23] The Convention 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.”[24]
Refugee law can, in some jurisdictions and depending on the facts of the particular case, be used as a basis for prohibiting the removal of individuals who are HIV-positive. Claims for refugee or asylum status under the Convention and its Protocol alleging fear of persecution based on HIV/AIDS status have occasionally been accepted in some status determination tribunals throughout the world. Some jurisdictions have held that HIV status can form the basis of membership in a particular social group for the purposes of a claim based on the Convention.[25]
Additional Human Rights and Humanitarian Protections from Removal
Many states also provide for additional forms of protection (known generally as “complementary” protection), which supplement the protection framework discussed above with an extended concept of non-refoulement based on additional human rights and humanitarian law obligations.[26] Distinct from temporary protection offered in emergency situations, complementary protection mechanisms are a feature of most western legal systems.[27] While no definition of complementary protection exists in international law, when, in 2005, the Executive Committee of the UNHCR adopted the first international Conclusion particularly on “complementary forms of protection,” it suggested that the term included individuals not covered by the 1951 Convention and its protocol, and referred to regional instruments that define refugees as people who cannot return to their countries due to indiscriminate threats resulting from situations such as generalized violence, armed conflict, or events seriously disturbing public order.[28]
Depending on the law of the state involved, an individual may make a claim for protection based on a variety of eligibility criteria grounded in international human rights and humanitarian law obligations to non-citizens.[29] From a human rights law perspective, such protections may include those set out in the Convention on the Rights of the Child, particularly the “best interests of the child” principle.[30] Deportation may also be prohibited or withheld based on humanitarian principles. In such cases, an applicant may qualify if, returned to his or her country of origin, he or she would face a threat to his or her life, safety or freedom as a result of generalized violence, external aggression, occupation, internal conflicts, foreign domination, or other events or circumstances seriously disturbing public order in either part or the whole of the country of origin.[31] Several international humanitarian law obligations also explicitly prohibit removal of an individual from a country, though these are limited in their scope and apply only to parties to an international armed conflict and often individuals in their country of origin.[32] Additionally, further international humanitarian law provisions not amounting to prohibitions on removal may influence states in their decision to deport.[33]
[6]UN Human Rights Committee, General Comment 15, The Position of Aliens Under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1, p. 18 (1994), para. 5. For a discussion of the right to raise defenses to deportation, the principle of proportionality, the right to family unity, and the right to protection from return to persecution in the context of U.S. immigration law, see Human Rights Watch, United States — Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, vol. 19, no. 3(G), July 2007, http://www.hrw.org/sites/default/files/reports/us0707_web.pdf. Children, especially, have additional protections under international law which must be considered in deportation procedures. For a discussion of limitations on deporting children under international law, see, e.g., Human Rights Watch, Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece, 1-56432-418-4, December 2008, http://www.hrw.org/sites/default/files/reports/greece1208web_0.pdf. Human Rights Watch, Spain — Unwelcome Responsibilities: Spain’s Failure to Protect the Rights of Unaccompanied Migrant Children in the Canary Islands, vol. 19, no. 4(D), July 2007, http://www.hrw.org/sites/default/files/reports/spain0707webwcover.pdf. See also UN Committee on the Rights of the Child, General Comment No. 6, Treatment of Unaccompanied and Separated Children Outside their Country of Origin, U.N. Doc. CRC/GC/2005/6 (2005).
[7] Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954, art. 33. See also Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 3. ICCPR, art. 7. UN Human Rights Committee (UN HRC), General Comment 20, Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Forty-Fourth Session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 151 (2003).
[8]Ruma Mandal, “Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”),” UNHCR Legal and Protection Policy Research Series, June 2005, http://www.unhcr.org/refworld/pdfid/435e198d4.pdf (accessed December 17, 2008), p. 21.
[9] UN Human Rights Committee (UN HRC), General Comment 31: Nature of the Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004). See also UN HRC, General Comment 20, para. 9.
[10]See, e.g., UN HRC, General Comment 20, para. 9.
[11]African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, art. 5. American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser.L.V/II.82 doc. 6 at 25 (1992), arts. 5 and 22 (further noting that “[i]n no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.”). European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art. 3. Article 3 of the European Convention has been interpreted as an absolute prohibition on the return of a person to a territory where he or she faces a real risk of harm. European Court of Human Rights, Soering v. United Kingdom, Judgment of July 7, 1989, Series A no. 161. Chahal v. United Kingdom, 70/1995/576/662, Judgment of November 15, 1996.
[12]ECHR, art. 3.
[13] European Court of Human Rights, D v. the United Kingdom, no. 30240/96, Judgment of May 5, 1997, ECHR 1997-III no. 37.
[14]While a similar outcome was reached by the European Commission for Human Rights in the case of B.B. v. France, prior to European Court consideration of the referred case the French Government guaranteed that the individual in question would not be deported and so the case was not heard. European Commission for Human Rights, B.B. v. France, no. 30930/96, Judgment of 7 September 1998, Reports 1998-VI. Subsequent ECtHR cases have failed to find violations of Article 3, narrowly interpreting the “exceptional” standard set out in D. See, Karara v Finland, Decision of May 29, 1998 (deportation of an HIV-positive Ugandan national to Uganda was permitted on the basis that his illness had not yet reached an advanced stage and treatment was available in Uganda). S.C.C. v. Sweden, no. 46553/99, Decision of February 15, 2000 (Zambian national could be deported to Zambia on grounds that his HIV treatment had only recently been commenced, AIDS treatment was available in Zambia, and his children and other family members lived in Zambia). Bensaid v. the United Kingdom, no. 44599/98, Judgment of February 6, 2001, ECHR 2001-I (an Algerian national suffering from schizophrenia could be deported because the risk of deterioration of his condition was to a large extent speculative, and medical treatment was ostensibly available to him in Algeria, where he had family). Arcila Henao v. the Netherlands, no. 12699/03, Decision of June 24, 2003 (a Colombian HIV-positive national could be deported as his illness had not achieved an advanced or terminal stage, treatment was in principle available in Colombia, and his father and siblings resided there). Ndangoya v. Sweden, no. 17868/03, Decision of June 22, 2004 (deportation to Tanzania was permitted as, although the applicant was HIV-positive, his illness had not reached an advanced or terminal stage, treatment was available in Tanzania albeit at considerable expense and not widely, and he did have some family support and relatives in Tanzania). Amegnigan v. the Netherlands, no. 25629/04, Decision of November 25, 2004 (deportation of a Togolese HIV-positive national was permitted as his illness had not attained an advanced or terminal stage, adequate treatment was in principle available in Togo, albeit at a considerable cost, and he had family support in Togo). N. v. United Kingdom, no. 26565/05, Judgment of May 27, 2008, (HIV-positive Ugandan in stable condition while receiving treatment could be deported given the availability of medication in principle in Uganda, and the existence of the applicant’s family members in Uganda). All decisions and judgments are available at www.echr.coe.int.
[15]Bensaid v. the United Kingdom, para. 38; Arcila Henao v. the Netherlands, p. 8. Ndangoya v. Sweden, p. 13. Armegnigan v. the Netherlands, p. 9. N v. United Kingdom, para. 42.
[16]See, e.g., Bensaid v. the United Kingdom, para. 39.
[17]Arcila Henao v. the Netherlands, p. 8. Ndangoya v. Sweden, p. 13. Armegnigan v. the Netherlands, p. 9. N v. United Kingdom, paras. 42 and 43.
[18] Inter-American Commission on Human Rights, Andrea Mortlock Case, Judgment of July 25, 2008, report no. 63/08, case 12.534. The Commission does not separately define the terms “cruel,” “infamous” and “unusual” in its opinion. Ibid.
[19] Nina Bernstein, “Rights Agency Urges U.S. Not to Deport AIDS Patient,” The New York Times, August 27, 2005.
[20]Inter-American Commission on Human Rights, Andrea Mortlock Case, para. 21.
[21] Ibid., para. 91.
[22]Ibid., para. 103.
[23]Convention relating to the Status of Refugees, art. 1(A)(2). Protocol Relating to the Status of Refugees.
[24] Ibid.
[25] In the United States, for example, the Board of Immigration Appeals has ruled in a non-precedent decision (In Re Oscar Alberto Argueta, BIA, November 14, 2003) that people living with HIV/AIDS can comprise a social group. The then-Immigration and Naturalization Service Office of the General Counsel has also recommended that the category of persons living with HIV be recognized as a social group for asylum purposes. Memorandum from INS Office of the General Counsel, David A. Martin, General Counsel, to all Regional Counsel, Legal Opinion: Seropositivity for HIV and Relief from Deportation (Feb. 16, 1996), reported in 73 Interpreter Releases 901 (July 8, 1996). See also Matter of [ ], (IJ December 20, 2000), reported in 78 Interpreter Releases 233, January 15, 2001. Matter of [ ], A71-498-940 (IJ October 31, 1995), reported in 73 Interpreter Releases 901, July 8, 1996.
[26]Jane McAdam, “Complementary Protection and Beyond: How States Deal with Human Rights Protection,” UNHCR Working Paper No. 118, August 2005, http://www.unhcr.org/research/RESEARCH/42fb1f045.pdf (accessed July 20, 2009), p. 1. Mandal, “Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”),” p. ix. Indeed, states have varying names for sorts of protection that are included in “complementary” protection, including “subsidiary protection”, “humanitarian protection”, and “temporary asylum.” Ibid. See also Jane McAdam, Complementary Protection in International Refugee Law (Oxford, UK: Oxford University Press, 2007), p. 2. Volker Türk and Frances Nicholson, “Refugee Protection in International Law: An Overall Perspective in Refugee Protection,” in Erika Feller et al., eds., International Law: UNHCR’s Global Consultations on International Protection (Cambridge, UK: Cambridge University Press, 2003), pp. 3 and 6.
[27]McAdam, Complementary Protection in International Refugee Law, p. 3.
[28]Ibid., p. 40. See also UNHCR Executive Committee, “Conclusion No. 103: Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection,” 2005. The Executive Committee did note that this term included individuals encompassed by regional protection mechanisms, the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the Cartagena Declaration on Refugees, and asylum legislation adopted by the European Union.
[29]McAdam, Complementary Protection in International Refugee Law, p. 9.
[30]Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, art. 3. For an example of how this principle may be applied in the national deportation context, see, e.g., Swedish Aliens Act, amended, March 31, 2006, chapter 1, s. 10. Baker v. Canada, 2 SCR 817, 1999. See also Committee on the Rights of the Child, General Comment No. 6. McAdam, Complementary Protection in International Refugee Law, pp. 173-96.
[31] The basis for this type of protection is refugee definitions in the 1969 Convention Governing Specific Aspects of Refugee Problems in Africa (OAU Convention), the 1984 Cartagena Declaration on Refugees and the 2001 Bangkok Principles on the Status and Treatment of Refugees. African States which are parties to the OAU Convention, Latin American States that have signed the Cartagena Declaration and Asian and African States that have signed the Bangkok Principles must recognize individuals falling under this category as refugees and not as individuals with a claim for complementary protection.
[32]Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950, art. 49. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978, art. 17.
[33]Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 3.