Recommendations and Conclusion

States have an obligation to provide detainees with medical care at least equivalent to that available to the general population. In order to meet the requirements of international human rights law regarding the treatment of detainees, states worldwide should begin or continue to provide ART drugs to HIV-positive individuals in detention awaiting deportation on at least the same basis as that offered to the general population. Individuals should not be held in detention, especially for months at a time, without access to medication. Human Rights Watch has argued elsewhere the necessity of providing ART in detention.[92]

Given the legal framework and national case studies discussed in this report, Human Rights Watch, Deutsche AIDS-Hilfe, the European AIDS Treatment Group, and the African HIV Policy Network have several recommendations for national governments and international agencies and donors aimed at realizing national obligations of non-refoulement and, as a policy matter, ensuring that treatment is not interrupted or discontinued when individuals are deported.

Recommendations for National Governments

Publish comprehensive information on the number of forcible removals of HIV-positive individuals including the number of individuals removed, grounds for removal, and countries to which they are removed

Existing sources of information on the number of HIV-positive individuals forcibly removed, legal non-refoulement protections potentially available to them, and provision—if any—made for their continuing treatment after removal are often inadequate.[93] Information from governments particularly on the number of HIV-positive individuals who are removed and the grounds for their removal needs to be published so that advocates, organizations serving migrants and deportees, and international agencies are able to enrich their understanding of these removals and better design programs aimed at improving the lives of HIV-positive migrants.

Ensure national laws that permit deportation of people living with HIV meet “non-refoulement” obligations

The European AIDS Treatment Group has previously called on governments to end “harmful practices, such as deportation, connected with HIV status. It is unacceptable to deport people to places where treatment and care are not guaranteed.”[94] Human Rights Watch, Deutsche AIDS Hilfe e.V., the European AIDS Treatment Group and the African HIV Policy Network call on governments to reexamine deportation of HIV-positive individuals to countries where treatment and social support are inadequate, in accordance with non-refoulement prohibitions on deportation, and to offer additional complementary bases of protection. In determining a standard for when an individual should not be removed, national governments should consider regional case law, and in particular the Inter-American Commission on Human Rights’ recent decision in the Mortlock case.

Where feasible, establish pre-deportation service enrollment and temporary medication supply

As a matter of good practice, states—in cooperation with international agencies and donors—should attempt to assist people living with HIV to continue treatment for their illness when they are deported.[95] Initiatives to provide cross-border treatment between the United States and Mexico could serve as an example in this regard.[96] Programs such as the US-Mexico Border AIDS Steering Team—a hybrid federal and academic program that provides support to HIV-positive detainees returning to Mexico from detention centers in the US Southwest—serve as a model for how treatment can be coordinated for deportees across borders and should be expanded where feasible.[97] Prior to deportation, health officials in the deporting country could contact the health authorities and anticipated health provider in the deportee’s country of origin and discuss how continuous access to treatment will be ensured, to make sure that waiting lists do not prevent registration for health services in the country of origin, the deportee has selected and is aware of a new provider, and medical records are confidentially transferred to a individual’s new physician. These actions will both allow the immigration authorities in the deporting country to provide deportees with adequate information about the steps needed to obtain services upon deportation, as well as ensure that care is planned as much as possible in advance. Crucial to this advance arrangement is not only the securing of a guarantee that services will be provided, but coordination with the country of origin’s National HIV/AIDS Program so that an official will meet the deportee at the airport or other point of entry in order to review planned treatment. 

Providing a temporary supply of ART medication for self- or health provider-administration may be strongly recommended for people living with HIV who are deported to countries in which anti-retroviral medication is not immediately accessible to newly arrived deportees. The US government has shown that it is possible to provide a longer-term supply of medication when an individual still requires a course of treatment and the medication is not readily available in the country of origin in the context of TB treatment.[98] Even if ART is available in principle in a country, regional unavailability, lack of understanding of the health system, language barriers, lack of community ties, waiting lists, lack of second- or third-line drugs, or medication shortages can all conspire to keep individuals living with HIV from accessing treatment upon deportation. 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 options in the country of origin. Such coordination is especially important in order to avoid treatment interruption and the development of drug resistance, after which a patient requires drugs which are increasingly expensive and difficult to obtain.[99]

Create regional standards of care

In addition to coordinating access to treatment services by deportees in their country of origin upon deportation, national governments should also ensure that the guidelines governing HIV treatment themselves are coordinated and standardized across countries. UNAIDS has called for a “regional protocol for the standardization of HIV treatment, as well as a regional system and means to secure such treatment by affected individual.”[100] National governments should participate with regional organizations and neighboring countries in joint efforts to create the regional standards of care necessary to facilitate deportees’ smooth transition to services upon deportation. A broad-based, multi-country initiative is necessary to harmonize care and treatment standards and to ensure consistency in approach to treatment across borders. Recent efforts in the Southern African Development Community to advocate for harmonized communicable disease treatment mechanisms and management guidelines across the region are a commendable step in this direction.[101]

Recommendations for International Agencies and Donors

Aid states in establishing cross-border treatment

International agencies and donors have a history of supporting cross-border HIV/AIDS initiatives, particularly in the context of HIV/AIDS prevention efforts along transit corridors.[102] Such expertise, coupled with multi-national reach and influence, make these individuals and organizations essential players in supplementing cross-border treatment initiatives for individuals with HIV/AIDS who are deported. Together with state governments, international agencies and donors could play a role in making sure that confidential medical records are transferred in a timely manner, ensuring information is available in deporting countries about how to register deportees for treatment in their countries of origin, developing regional standards of care, and ensuring that local support is in place in the country of origin, providing translation services if necessary. UNAIDS has also recommended the development of reception centers in each country providing information for migrants, including referrals for health care.[103] International agencies and donors could be instrumental in implementing such services in coordination with national governments.

Place the issue of deportation of HIV-positive individuals on the research and documentation agenda

As noted above, there is a dire need for governments to publish complete and accurate information on HIV-positive deportees, including the  number of HIV-positive individuals deported, the grounds for their deportation, and measures (if any) to ensure appropriate care (including continuity of ART) in relevant receiving countries. Research into and analysis of HIV-related deportation policies and practices, as well as detailed, accurate, and up-to-date information on the realistic availability of HIV treatment in both rural and urban settings in receiving countries, by international agencies and donors is also essential to best understand, and therefore address, the particular needs of HIV-positive deportees. International donors and agencies should add this issue to their research agenda so that the legal and public health communities may better understand the challenges facing this population pre- and post-deportation.

The international community has a two-fold opportunity to improve the life-chances of people living with HIV/AIDS, both through meeting international obligations of non-refoulement, and, as a policy matter, through improved coordination with local authorities in the country of removal to minimize interruptions in treatment. Ultimately, however, if countries continue to deport HIV-positive migrants, for the benefit of these deportees and for individuals living in countries of removal, HIV/AIDS treatment systems in countries throughout the world must continue to be strengthened with the assistance of developed nations, especially the systems of those countries to which individuals are regularly deported. Assisting countries of origin, and others in the world, to improve health systems to the point where HIV/AIDS treatment, care, and support are freely available to all individuals in the population is an essential and pressing public health challenge that the international community must embrace on behalf of returning migrants and all people living with HIV/AIDS.