Across the globe, 31 countries have policies of deporting HIV-positive citizens of other countries, the Eighteenth International Conference in Vienna was told on Tuesday. Moreover, speakers from three European countries explained that while their countries do not deport individuals because of HIV, the deportation of refused asylum seekers and undocumented migrants does occur, even when it is doubtful that the individual will be able to obtain essential medicines in the country they are sent to.
Peter Wiessner presented an analysis of data in The Global Database on HIV-Related Travel Restrictions, which identified 31 countries whose law, policy or practice allows for the deportation of foreign nationals because they have HIV. In many but not all cases, this primarily affects long-term residents.
Seven countries in the Gulf (a region reliant on migrant labour) and four others in the Middle East have such policies. Egypt says it deported all 722 foreigners (90% of them African) who were diagnosed with HIV in the country between 1986 and 2006.
Numerous Asian countries, including India, Malaysia, Singapore and Taiwan, are also ready to deport. In recent years, South Korea has deported 521 of 546 HIV-positive foreigners it identified.
In Europe, Russia, Moldova and Armenia deport foreigners who have HIV. Hungary, which is a member of the European Union, may expel foreigners who do not take treatment.
Other speakers compared the situation of migrants in Austria, France and the United Kingdom.
Each referred to the European Court of Human Rights ruling in the case of N, a landmark case which determined that it would not be “inhumane or degrading treatment” for a state to deport a person to their home country even if antiretroviral treatment were not always accessible there. Although the N case concerned a Ugandan woman and the government of the United Kingdom, it has had legal implications for countries across Europe and has allowed to states to reject many applications from migrants with HIV.
Franck Amort, presenting on behalf of Maritta Teufl, noted that Austrian government policy has become increasingly restrictive in recent years. An analysis of court transcripts and rulings had identified that the examination of evidence about treatment and healthcare facilities in a migrant’s country of origin tended to be inadequate. Claims that treatments are available were taken on face value, and the likelihood of the individual in question being able to actually obtain treatment was not seriously considered.
The British and French speakers presented quite different approaches to supporting migrants threatened with deportation.
Taking quite a pragmatic approach, Sarah Radcliffe of NAT described how, in the UK, an advocacy organisation and group of HIV clinicians had worked to improve the access to healthcare for asylum seekers who are being held by the government in a detention centre (often a preliminary step before removal from the country). Key aims were that access to antiretrovirals would be uninterrupted, there would be continuity in healthcare (for example, attendance at clinic) and that a person being deported would be adequately prepared (for example, with sufficient drug supplies and links to care at their destination). To these ends, a guidance document has been developed in co-operation with healthcare staff at detention centres and this has been previously described on aidsmap.
Radcliffe said that she was aware of the document being used by community organisations to advocate for detainee’s rights to access HIV care, and in some cases to prevent or delay deportation.
The aims of Caroline Izambert from Act-Up Paris were more ambitious. She suggested that the case law of N could still be challenged.
She also pointed out that this court decision referred only to a minimum standard and did not in any way prevent a state from offering more protection to a migrant with a health problem.
In fact, France has since 1998 had a law allowing a person to be given a residence permit on medical grounds. The person must require essential treatment that is not accessible in their country of origin, but that is available in France. Although the implementation of this law has tended to be restrictive in recent years, the law was upheld a few months ago by the Conseil d’Etat, a high ranking judicial body.
Moreover, this judicial decision clarified that for a treatment to be considered 'accessible' it had to be genuinely accessible to the individual concerned. Although a drug may be available in a country, in practice treatments may only be available in certain locations, to certain social groups, with interruptions in supply, in limited quantities, or at a price that is unaffordable for the person concerned.
Izambert recommended that activists in other countries should fight for the implementation of similar legislation.
Presentations by the speakers and their related abstracts are available on the official conference website.
Wiessner P et al. Deportation of HIV-positive migrants in 29 countries: impact on health and human rights. Eighteenth International AIDS Conference, Vienna, abstract TUAF0101, 2010.
Teufl M. Legal situation of migrants with chronic disease, particularly HIV/AIDS, in Austria. Eighteenth International AIDS Conference, Vienna, abstract TUAF0102, 2010.
Radcliffe S et al. Detention, removal and people living with HIV. Eighteenth International AIDS Conference, Vienna, abstract TUAF0103, 2010.
Izambert C et al. Prevention of the expulsion of non-European HIV positive foreigners in spite of an unfavourable judgement by the European Court of Human Rights: the French case. Eighteenth International AIDS Conference, Vienna, abstract TUAF0104, 2010.