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. 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.
Recommending that the United States refrain from deporting Ms. Mortlock, the Inter-American Commission set out its test for prohibiting deportation of HIV-positive individuals. That test considers whether deportation would create extraordinary hardship to the deportee and his or her family based on 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, in the receiving country. Again at the regional level, the European Court of Human Rights (ECtHR) has also grappled with the issue of deportation of people living with HIV and AIDS to places where anti-retroviral therapy (ART) and individual support networks are not readily available, developing case law 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.
The principle of non-refoulement, applied in the Inter-American Commission and ECtHR cases, has long been established in international human rights and refugee law. In human rights law it has created 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. International refugee law prohibits the return of refugees to a territory where the refugee’s life or freedom may be threatened. Additionally, in some states, a form of protection from removal known as “complementary” protection exists, which can govern categories of people who claim that they cannot be returned to their country of origin based on human rights or humanitarian law principles but do not fit into traditional refugee definitions, according a wider range of eligibility.
National protections against refoulement, however, are often insufficient or underdeveloped to protect the rights of people living with HIV against unlawful return. Furthermore, from a policy perspective, post-deportation continuity of treatment mechanisms often are non-existent or grossly inadequate to protect deportees’ health, and may lead to illness, premature death, or the development of drug resistance. In South Korea, as in many other countries with HIV-related restrictions on entry, stay, and residence, non-citizens are deported upon discovery of their illness because of their very HIV status, without consideration of the possibility of refoulement. In Gulf States including Saudi Arabia and the United Arab Emirates, individuals found to be HIV-positive are detained—sometimes for months on end—with no access to treatment, then summarily deported without any provision for continuity of care. South Africa, while having in place constitutional provisions and case law that could be used to prohibit refoulement, has not yet done so for people living with HIV facing lack of treatment in their country of origin, and has compromised the health of migrants by deporting individuals without any referral to treatment. The United States, despite having strict HIV-related restrictions on entry, stay and residence, has granted asylum to some HIV-positive individuals where the person faces persecution in his or her country of origin based on HIV status; however, when HIV-positive individuals are deported, adequate systems are often not in place to ensure that treatment is not interrupted or discontinued.
In order to meet international human rights law protections of detainees’ and deportees’ rights to life, health, and to be free from torture and cruel, inhuman and degrading treatment, states worldwide should begin or continue to provide ART to HIV-positive individuals in detention awaiting deportation and should reexamine deportation of HIV-positive individuals to countries where treatment and social support structures are inadequate.
As a matter of good practice, states should also make provision for continuing deportees’ treatment when deportation does take place. Specifically, Human Rights Watch, Deutsche AIDS-Hilfe, the European AIDS Treatment Group, and the African HIV Policy Network recommend that states:
- Publish comprehensive information about HIV-positive individuals deported, including the numbers of individuals removed, grounds for removal, and countries to which they are deported.
- Review national standards on deportation of people living with HIV to ensure compliance with international prohibitions on refoulement.
- Where feasible, contact health authorities and anticipated providers in each deportee’s country of origin, devise a plan for continuing to assure care without interruption, and possibly provide a temporary medication supply if necessary.
- Together with international agencies and donors, work to harmonize regional standards of care.
International agencies and donors, as well, have an opportunity to improve deportees’ access to adequate treatment. Crucial steps toward improving the health of deportees may be made by international donors and organizations by:
- Supporting and supplementing states’ efforts to provide cross-border continuity of care for individuals undergoing deportation, including ensuring the existence of confidential medical record transfer systems, cross-border health care registration, uniform regional standards of care, and local support networks in deportees’ countries of origin.
- Placing the deportation of HIV-positive individuals on their research agenda, and collecting and providing better data on this practice, as well as more detailed, accurate, and up-to-date information on the availability of treatment in receiving countries.
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. 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. 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.
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. 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.
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.
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. 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.
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; 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.” 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. 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.
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.” 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.
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. 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. 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. 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. 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.” 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. 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. 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.” Based on this test, and given Ms. Mortlock’s particular circumstances, the Commission recommended that the United States refrain from deporting Ms. Mortlock.
Regional Tests for Deportation of People Living with HIV
European Court of Human Rights
Inter-American Commission on Human Rights
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.” 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.”
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.
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. Distinct from temporary protection offered in emergency situations, complementary protection mechanisms are a feature of most western legal systems. 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.
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. 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. 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. 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. Additionally, further international humanitarian law provisions not amounting to prohibitions on removal may influence states in their decision to deport.
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.
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.
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. 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.” 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. Initiatives to provide cross-border treatment between the United States and Mexico could serve as an example in this regard. 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. 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. 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.
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.” 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.
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. 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. 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.
This report was written by Katherine Wiltenburg Todrys and edited by Rebecca Schleifer and Joseph Amon, all with the Health and Human Rights Division at Human Rights Watch. Aisling Reidy, Senior Legal Advisor, and Iain Levine, Program Director, both of Human Rights Watch, reviewed the report. It was also reviewed by Peter Wiessner of Deutsche AIDS-Hilfe, David Hans-Ulrich Haerry of the European AIDS Treatment Group, and Rhon Reynolds and Edna Soomre of the African HIV Policy Network. Production assistance was provided by Mignon Lamia, Grace Choi, Fitzroy Hepkins, and Jose Martinez, all of Human Rights Watch.