National Laws and Procedures in Place for Migrants Engaged in Deportation Proceedings
People living with HIV may be subject to deportation for the same reasons as other non-citizens or, in some countries, based on their HIV status itself. Available information from some migrant-rich countries in the world suggests an emerging but incomplete consideration of the international and regional prohibition on refoulement in national immigration laws that could be better developed and applied to people living with HIV, as well as a pervasive failure to ensure that treatment is continued upon deportation. Below, Human Rights Watch, Deutsche AIDS-Hilfe, the European AIDS Treatment Group, and the African HIV Policy Network have chosen to highlight case studies from South Korea, Saudi Arabia and the United Arab Emirates, South Africa, and the United States, as they demonstrate the broad range of issues involved and challenges remaining in deportation of HIV-positive individuals across diverse geographic regions and cultures.
Republic of Korea (South)
South Korea places strict limits on the entry, stay and residence of people living with HIV, and is one of 30 countries in the world that force HIV-positive foreigners to leave their borders. The country has a significant population of migrant workers: In 2007, South Korea had 468,000 registered migrant workers. Many migrant workers are required to submit for HIV testing. Since November 2007, Korean national policy has mandated that E-2 Teaching Visa holders submit a health certificate, including an HIV test, when applying to extend their residence in Korea, and new applicants for the E-2 visa must submit a health certificate including an HIV test when applying for alien registration. Upon testing positive, a non-citizen is detained and, after confirmation of the test result, the individual’s employer is notified and the individual is held in a detention center until being deported to his or her country of origin, typically within a week. The Joint United Nations Programme on HIV/AIDS (UNAIDS) estimated that in 2007 there were 13,000 adults living with HIV in Korea. 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.” While there is no information as to which of the non-citizens may have subsequently suffered inhuman and degrading treatment as a result of their forced removal, no steps were taken by the South Korean authorities to ensure they were not put at that risk. Indeed, Thai migrant workers have reported that, for those migrants deported from South Korea because of their HIV-positive status, “[t]here’s nothing they can do but die if they go back to Thailand,” and they have called for counseling, medical education, and health care for those found to be infected. South Korea is a party to the core international treaties prohibiting refoulement, the ICCPR and CAT.
Case Study: “Heo”
In March 2007, “Heo,” a Chinese citizen of Korean descent, arrived in South Korea on an ethnic Korean visitor visa at his (Korean citizen) mother’s invitation, and subsequently received a work visa from the Seoul Immigration Office. During a health check required for the job training program under his visa category, Heo was found to be HIV-positive, and his HIV status was reported to the Seoul Immigration Office on May 3, 2007. That same day, Heo was detained in a foreign internment camp, and a departure order directing him to leave by May 21, 2007 was issued on the next day. Heo was released upon his mother and stepfather signing a memorandum of understanding that they would leave the country voluntarily. Monitoring of his health at that time suggested that antiretroviral therapy would likely be required after four years.
Heo challenged his deportation in proceedings before the Seoul Administrative Court. The National Human Rights Commission of Korea submitted an opinion supporting Heo, noting that “[i]n light of international human rights standards and foreign cases, it is the opinion of the Commission that ordering a foreigner who has been staying in Korea to leave the country solely because he or she is infected with HIV is extreme. Considering all of the circumstances of the plaintiff, the presence of an HIV-positive person is not likely to pose a grave risk to public health, whereas the order would be an irreversible violation of the plaintiff’s basic human rights.” The Seoul High Court (upholding the Seoul Administrative Court) prevented Heo’s deportation in November 2008, finding that public health goals must be balanced against the rights to privacy and to receive medical treatment, and that early detection and treatment rather than deportation are the most effective means of curbing the spread of HIV. Furthermore, the Court noted that the deportation constituted a violation of Heo’s human rights.
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,” an HIV-positive Chinese citizen of Korean descent visiting his mother in Korea, finding that the deportation was contrary to public health and violated Heo’s human rights. However, despite this ruling, the Korean government introduced a parliament bill in December 2008 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.
Gulf States: The Kingdom of Saudi Arabia and the United Arab Emirates
In Saudi Arabia, HIV testing is required for applications for long-term work permits, prior to entry, as well as on a routine basis for renewal of the two-year residency permit. Far from being eligible for consideration for protection from removal as a result of their HIV status (though Saudi Arabia is a party to the CAT), individuals testing positive are deported as a result of their HIV status itself.
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 2005, press reports highlighted the case of an HIV-positive Palestinian migrant to Saudi Arabia, jailed in a “crowded cage” at the King Saud Hospital for Infectious Diseases for three months—along with two HIV-positive cellmates, awaiting deportation. The detainee reported that he and other HIV-positive migrants are treated “like animals,” and noted the deportation of one among their number to Burma after being kept locked up for a year without any access to medications. Indeed, one doctor admitted that many individuals die in detention, with doctors prohibited from giving them treatment or care. In 2005, CARAM Asia reported the case of a Filipino migrant worker in Jeddah, Saudi Arabia, who, upon testing positive for HIV, was confined in the hospital with other HIV-positive migrants for 11 months, unable to leave, deprived of income, and without any information on the progress of his case. CARAM reports that, in the cases of deported Filipino migrants such as this one, psychological trauma, job loss, and lack of sustainable access to adequate health care (including antiretrovirals) are major issues.
Severe stigma and discrimination face many migrants returned from Saudi Arabia. In 2007, CARAM Asia documented the devastating consequences of deportation from Saudi Arabia for HIV-positive migrants, including one male worker who became an alcoholic and suicidal upon deportation, and was ostracized by his family.
Case Study: “Harjeet”
In 2008, the International AIDS Society compiled a series of narratives related to the personal effects of HIV-related restrictions on entry, stay, and residence, for UNAIDS’ International Task Team on HIV-Related Travel Restrictions. One of the cases it documented was that of “Harjeet,” an Indian migrant worker deported from Saudi Arabia because of his HIV status. Prior to departure for Saudi Arabia, an agent and doctor informed Harjeet that there was “something wrong” with his blood test results, offering to change the test results for a fee and assuring him that his visitor’s visa would easily be converted to a work visa upon arrival in Saudi Arabia. Arriving in Saudi Arabia, however, Harjeet was left destitute and unable to convert his visa, after the in-country medical tests required for the conversion found him to be HIV-positive. Detained and treated as a “stray dog,” Harjeet was sent back to India with a new stamp in his passport: “Deported.” Harjeet did not tell his family about his HIV status, and became depressed and an alcoholic. When he developed tuberculosis, his family took him to a hospital and learned that he was HIV-positive, which led to his wife leaving him, his two children being taken away from him, and his being ostracized by his family. Placed in a care center, Harjeet stopped taking his tuberculosis medication and began having seizures, one of which left him paralyzed on one side of his body. Fortunately, with the support of the care center, Harjeet recovered from the tuberculosis and paralysis, and now works with people living with HIV.
The United Arab Emirates (UAE) engages in similar practices. Workers testing positive for HIV are reportedly jailed and deported without any treatment or provision for care. Domestic workers comprise five percent of the UAE population and the number of migrant domestic workers in the country has grown rapidly in recent decades. Migrant workers applying for a work or residence permit must undergo medical testing (including HIV testing) within the first three months of residence, conducted almost universally without counseling or consent. Those testing positive may be deported. In 2008, the United States State Department Report on human rights in the UAE noted that the government deported 1,518 noncitizen residents infected with HIV, hepatitis types B and C, and tuberculosis that year. Despite some reports that national policy on mandatory HIV testing and deportation of HIV-positive non-citizens was under review, a May 12, 2009 press report quoted the head of the National AIDS Programme as saying the policy was not currently under review and any changes would have to be discussed with other Gulf countries.
Migrants suffer serious hardships under the UAE deportation regime. Those migrant workers who test positive are generally reported to be detained in jail-like hospital cells, without treatment, and then returned to the their country of origin, with a lifetime ban stamp in their passport preventing return. No formal referral system for treatment exists. One migrant to the United Arab Emirates reported no counseling upon testing HIV-positive, and immediately being sent back to his country of origin. Far from receiving any official referral for treatment, a deported Cambodian worker noted that, upon testing positive and being jailed in Dubai, the posters on the wall of Dubai jail actually included advertisements “of a notorious quack in Kerala who used to claim he could cure AIDS.” One HIV-positive Pakistani worker was deported directly from the Dubai jail with a 104-degree fever. The local Pakistani doctor his wife procured for him first informed his wife that the government would give him a poison injection if they discovered the disease, then publicized the family’s address in a newspaper.
The Republic of South Africa
In addition to being home to the largest number of individuals infected with HIV in the world—in 2007, UNAIDS and the World Health Organization estimated that 5.7 million adults were living with HIV in South Africa—South Africa is also home to a large number of migrants, many of them undocumented and many of them from countries with grossly inadequate medical treatment and care. Identifying the number of migrants in South Africa is itself controversial. Estimates vary widely, and rise as high as six million non-citizen migrants in the country in 2008, compared with an overall population of 47 million. Most of these migrants come from other countries in the Southern African Development Community. In particular, as a result of the political and economic crisis in neighboring Zimbabwe, migrants have come to South Africa in large numbers.
South Africa does not currently have HIV-related restrictions on entry, stay, and residence. However, deportation on unrelated grounds of individuals who are HIV-positive raises the issue of when non-refoulement prohibitions or additional complementary protection provisions may be invoked to prevent deportation of persons living with HIV to places where treatment is not available. South Africa is a party to the core international treaties dealing with non-refoulement including the ICCPR and the CAT.
The South African Constitutional Court has spoken explicitly of obligations to individuals claiming protection based on the argument that they would suffer inhuman and degrading treatment in their country of origin. South Africa’s Constitution provides that “everyone has the right to freedom and security of the person which includes the right not to be treated or punished in a cruel, inhuman or degrading way.” In 2001, the Constitutional Court held that the South African authorities could not deport a person to a country where that person would be executed because South African law considers the death penalty to be “cruel, inhuman and degrading punishment.” This judgment may have important implications for prohibiting the deportation of individuals who are HIV-positive to places where adequate treatment or social support is not in place, and so, where a deportee would experience such suffering as to amount to inhuman or degrading treatment.
When individuals are deported, however, post-deportation treatment and continuity of care remain a challenge. Non-governmental organizations have documented that migrant workers, including Basotho in South Africa, infected with multi-drug resistant tuberculosis and often with HIV, have faced deportation and have been left at the border of their home country without any treatment or referral, either by the employer (often a mining company) or the South African government. Such conduct can amount to a death sentence. Human Rights Watch has also reported the deportation of hundreds of thousands of Zimbabwean migrants from South Africa to Zimbabwe, despite the fact that medical care available to persons living with HIV in Zimbabwe falls far short of needs.
In 2007, the UN estimated that 1.1 million adults were living with HIV in the United States. The US has particularly restrictive policies on entry, stay, and residence for people living with HIV. When HIV-positive individuals are faced with deportation, US law provides several legal avenues that individuals seeking to avoid deportation could theoretically pursue.
Individuals who are unlawfully in the US may seek protection against deportation on three basic grounds. First, an individual may try to qualify for asylum. To do so, the individual must establish that he or she is unable or unwilling to return to his or her country of nationality because of persecution or a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Some immigration judges have held that HIV status can form the basis of membership in a particular social group for the purposes of an asylum claim. Furthermore, on rare occasions HIV-positive individuals have succeeded in obtaining refugee status based on their likelihood of persecution based on HIV status by adherents to a religious practice fostering discrimination against people living with HIV.
Second, an individual may try to seek so-called “withholding of deportation” under US law or apply to prevent his or her deportation based on the Convention Against Torture prohibitions on refoulement. An individual may qualify for “withholding of removal” under the US Immigration and Nationality Act to prevent his or her removal to a country if he or she can establish that it is more likely than not that his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
For a US court to grant suspension of removal on the grounds that it would violate CAT, the individual must show that he or she will “more likely than not” be tortured in the country to which he or she is removed. Individuals who are ineligible for withholding of removal because they persecuted others, committed particularly serious crimes, or represent a danger to the United States remain eligible for deferral of removal under the Convention Against Torture.However, immigration judges have been reluctant to find CAT violations in removing HIV-positive individuals from the US, even when the petitioner would be removed to deplorable circumstances with practically nonexistent health care.
Some commendable initiatives to ensure continuous cross-border HIV treatment to deportees exist in the United States. However, deportees often face harsh conditions and lack of access to health care upon return from the US to their countries of origin. Receiving country governments have complained about the procedures and effects of US non-citizen deportation, especially when individuals with criminal convictions are deported without adequate notification or possibility of rehabilitation. In Guyana, legislation has authorized police surveillance of some 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 criminal deportees do not survive such detention. A study on injecting drug users in Mexico also suggests recent deportees have less access to health services than their peers.
 Korea’s Immigration Control Act stipulates that immigration officers have a right to deny entry to or to deport those who are carrying a communicable disease. Ministry of Legislation, “Immigration and Control Act (Republic of Korea),” http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN011498.pdf (accessed July, 20, 2009). See also Deutsche AIDS-Hilfe e.V., “Quick Reference,” p. 4. “The Global Database on HIV Related Travel Restrictions.”
 CARAM Asia, “State of Health of Migrants 2007: Mandatory Testing,” 2007, p. xiii.
 Ibid., p. 153.
 Ministry of Justice, Republic of Korea, Residence Policy Division, “New Changes on the E2 Teaching Visa Holders in Korea,” December 10, 2007, http://home.windstream.net/ssheiko/e2_changes_en.pdf (accessed June 17, 2009).
 CARAM Asia, “State of Health of Migrants 2007,” p. 156.
 World Health Organization, UNAIDS and UNICEF, “Epidemiological Fact Sheet on HIV and AIDS: Core Data on Epidemiology and Response: Republic of Korea,” December 2008, http://apps.who.int/globalatlas/predefinedReports/EFS2008/full/EFS2008_KR.pdf (accessed June 1, 2009).
 Bae Ji-Sook, “Deportation of HIV Positive Violates Human Rights,” Korea Times, March 3, 2008.
 CARAM Asia, “State of Health of Migrants 2007,” p. 157.
 South Korea acceded to the ICCPR on April 10, 1990 and to CAT on January 9, 1995.
 Seoul High Court, “Heo Case” (on file with Human Rights Watch).
 “Deportation of an HIV-Infected Foreigner is Extreme,” National Human Rights Commission of Korea press release, March 31, 2008.
 Seoul High Court, “Heo Case.” See The Law Times, November 14, 2008, http://www.lawtimes.co.kr/LawNews/News/NewsContents.aspx?kind=AA&serial=43571&page=1%ED%AF%80%ED%B0%81%00%00 (accessed June 2, 2009).
See Bill No. 3356, introduced December 30, 2008. See also Joseph Amon, “Blaming Foreigners,” Korea Times, March 12, 2009.
Human Rights Watch, Saudi Arabia – Bad Dreams. See also Saudi Arabia Ministry of Health, “MOH News: The World Celebrates the World AIDS Day,” November 28, 2007, http://www.moh.gov.sa/en/modules/news/article.php?storyid=305 (accessed May 29, 2009).
Deutsche AIDS-Hilfe e.V., “Quick Reference,” p. 35.
 CARAM Asia, “State of Health of Migrants 2007.”
Mark MacKinnon, “Saudis Jail, Deport Foreigners with HIV,” The Globe and Mail (Canada), August 9, 2005.
Action for Health Initiatives Inc. (ACHIEVE Inc.) and Coordination of Action Research on AIDS and Mobility (CARAM-Philippines), “Health at Stake: Access to Health of Overseas Filipino Workers: 2005 Report,” 2005, p. 39.
 Ibid., p. 43.
 CARAM Asia, “State of Health of Migrants 2007,” p. 50.
 Joint United Nations Programme on HIV/AIDS (UNAIDS), “The Impact of HIV-Related Restrictions on Entry, Stay and Residence: Personal Narratives,” May 2009, pp. 10-11.
UNDP Regional Centre in Colombo, “HIV Vulnerabilities of Migrant Women: from Asia to the Arab States,” October 2008, http://www2.undprcc.lk/resource_centre/pub_pdfs/P1105.pdf (accessed June 2, 2009), p. 95.
The UAE Ministry of Health website confirms that, under national law, “expatriates with HIV are deported.” United Arab Emirates Ministry of Health, “Sale of Drugs to Cut HIV Infection Allowed,” November 5, 2008, http://www.moh.gov.ae/en/NewsDetails434.aspx (accessed June 2, 2009). “The Global Database on HIV Related Travel Restrictions.” CARAM Asia, “State of Health of Migrants 2007,” p. 125.
 United States Department of State Bureau of Democracy, Human Rights, and Labor, “2008 Human Rights Report: United Arab Emirates,” February 25, 2009, http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119129.htm (accessed June 2, 2009).
 See, e.g., James Reinl and Mitya Underwood, “Aids Deportation Policy Under Federal Review,” June 11, 2008, http://www.thenational.ae/article/20080611/NATIONAL/342799182/1040/BUSINESS (accessed June 2, 2009).
 James Reinl and Mitya Underwood, “Ministry of Health Stands By HIV Policy,” May 12, 2009, http://www.thenational.ae/article/20090512/NATIONAL/705119804/1010/FRONTPAGE (accessed June 2, 2009).
 CARAM Asia, “State of Health of Migrants 2007,” p. 132.
 Ibid., p. 135.
Ibid. p. 37.
 Ibid., p. 51.
 New Light AIDS Control Society, “Voices of People Living with HIV/AIDS,” undated, http://www.fhi.org/NR/rdonlyres/ebsd553amdo33nqmsdlsm3kfsubgfm5ug3efjmngowv7sknutndbzxvln7vhmbe4mtxnri72je2c4k/CaseStudiesNewLight1enhv.pdf (accessed July 20, 2008), p. 7.
 World Health Organization, UNAIDS and UNICEF, “Epidemiological Fact Sheet on HIV and AIDS: Core Data on Epidemiology and Response: South Africa,” December 2008, http://apps.who.int/globalatlas/predefinedReports/EFS2008/full/EFS2008_ZA.pdf (accessed June 1, 2009).
 Parliament of the Republic of South Africa, “Background Research Report Compiled by the Research Unit for the Task Team of Members of Parliament Probing Violence and Attacks on Foreign Nationals,” http://www.parliament.gov.za/content/BACKGROUND_RESEARCH_REPORT.pdf (accessed July 20, 2008), p.1, citing Statistics South Africa, “Migration and Tourism September 2007- February 2008”.
Federation International des Droits de L’Homme (FIDH), “Surplus People? Undocumented and Other Vulnerable Migrants in South Africa,” January 2008, http://www.fidh.org/spip.php?article5166 (accessed December 7, 2008), p. 8.
 UNAIDS, “RST-ESA Position Paper: HIV in the Context of Zimbabwean Migrant Populations,” July 28, 2008, p. 1.
 Deutsche AIDS-Hilfe e.V., “Quick Reference,” p. 37. In past years, however, newspaper reports document South Africa’s deportation of migrant workers found to have AIDS, deporting as many as 1,000 coal and gold miners, primarily to the countries Malawi, Zimbabwe, Zambia, and Uganda. Adrian Croft, “South Africa to Deport Workers with AIDS Virus: Migrant Black Workers Near End of their Contracts Will Be Sent Home,” The Guardian (London), February 9, 1988.
 South Africa ratified both the ICCPR and the CAT on December 10, 1998.
 Constitution of the Republic of South Africa, art. 12(1)(e). This Article is one of many rights in South Africa’s Bill of Rights that belong to everyone, regardless of their legal status in South Africa. These rights are in sections 9-25, 27(3) and 28-35 of the Bill of Rights.
Mohamed v. President of the Republic of South Africa, (CCT 17/01)  ZACC 18,http://www.saflii.org/za/cases/ZACC/2001/18.html.
 Theo Smart, “Migrants with MDR-TB in Southern Africa Being Dumped Off at Borders Without Referrals to Care,” Aidsmap, October 31, 2008, http://www.aidsmap.com/en/news/F776AAFE-AB53-42B7-81BA-85C3E6426171.asp (accessed July 20, 2009).
 Human Rights Watch, South Africa — Neighbors in Need: Zimbabweans Seeking Refuge in South Africa, 1-56432-343-9, June 2008, http://www.hrw.org/sites/default/files/reports/southafrica0608webwcover.pdf.
 World Health Organization, UNAIDS and UNICEF, “Epidemiological Fact Sheet on HIV and AIDS: Core Data on Epidemiology and Response: United States of America,” December 2008, http://apps.who.int/globalatlas/predefinedReports/EFS2008/full/EFS2008_US.pdf (accessed June 1, 2009).
 Deutsche AIDS-Hilfe e.V., “Quick Reference,” p. 41.
 Immigration and Nationality Act, sec. 208. See also Department of Homeland Security and U.S. Department of Justice, “I-589, Application for Asylum and Withholding of Removal,” OMB No. 1615-0067, April 7, 2009, http://www.uscis.gov/files/form/I-589_Inst.pdf (accessed July 19, 2009).
 See note 25 above.
In Re C-J, No. A72-560-459 (U.S. Department of Justice, Executive Office for Immigration Review, Sept. 1, 2004). Lynda L. Ford, “HIV Afflicted Haitians: New Hope When seeking Asylum,” The University of Miami Inter-American Law Review, vol. 36, Winter-Spring 2005.
The U.S. ratified the Convention Against Torture on October 21, 1994.
 Immigration and Nationality Act, section 241(3)(b). See also Department of Homeland Security and U.S. Department of Justice, “I-589, Application for Asylum and Withholding of Removal.”
 8 C.F.R. § 208. Because the Convention is not self-executing, a petitioner raising a CAT claim is actually seeking relief under the Convention's implementing legislation, Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (codified at 8 U.S.C. § 1231).
8 C.F.R. §§ 208.17(a), 1208.17(a). See also Department of Homeland Security and U.S. Department of Justice, “I-589, Application for Asylum and Withholding of Removal.”
See, e.g., Lavira v. Attorney General of the United States, 478 F.3d 158 (3d Cir. 2007), overruled in part by Paul Pierre v. Attorney General of the United States, 528 F.3d 180 (3d Cir. 2008). But see also Jean-Pierre v. Attorney General of the United States, 500 F.3d 1315 (11th Cir. 2007).
“U.S.-Mexico Border AETC Steering Team,” undated, http://www.aidsetc.org/aidsetc?page=ab-01-10 (accessed June 29, 2009).
United States Bureau of Citizenship and Immigration Services, “Guyana: Information on the Treatment of Criminal Deportees,” February 12, 2004, http://www.unhcr.org/refworld/docid/414ef10d4.html (accessed June 29, 2009). Government Information Agency (GINA). “Monitoring of Deportees,” June 30, 2003, http://www.gina.gov.gy/archive/features/f030630.html (accessed June 29, 2009).
Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005). Paul Pierre v. Attorney General of the United States.
 K.C. Brouwer et al., “Deportation Along the U.S.-Mexico Border: Its Relation to Drug Use Patterns and Accessing Care,” Journal of Immigrant and Minority Health, February 5, 2008.