National governments should reconsider deportation policies for people living with HIV, Human Rights Watch said in a report released yesterday. The organisation called on governments, international agencies and donors to ensure that HIV-positive migrants have access to antiretroviral therapy when detained and to ensure that, if deported, migrants are able to maintain access to treatment and care.
The report was co-authored with the African HIV Policy Network, Deutsche AIDS-Hilfe and the European AIDS Treatment Group, and describes cases from a wide range of countries around the world.
International human rights and refugee law has long prohibited deportations to a state where the person deported would be at risk of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment.
However the authors argue that national deportation procedures are often insufficient or underdeveloped to protect the rights of people living with HIV against return to such conditions. If treatment or social support is inadequate, they believe that this can amount to inhuman or degrading treatment.
The European Court of Human Rights is one of the bodies that has interpreted this obligation in a narrow way, so that if antiretroviral treatment is in principle available in the receiving country and if the disease has not yet reached a terminal stage, deportation would not be considered to constitute inhuman or degrading treatment.
The authors note that in some situations individuals may be deported for reasons that are unrelated to their HIV status. However countries which have restrictions on entry or residence of foreigners with HIV may deport people because of their HIV status alone.
For example, in 2008 the United Arab Emirates deported 1,518 people infected with HIV, hepatitis B and C, or tuberculosis. Migrant workers are subject to mandatory HIV testing, usually without counselling, and those who test positive are detained, without antiretroviral treatment, and then returned to their country of origin, with no referral system to medical services.
A comparable system in South Korea was successfully challenged in the Seoul High Court on public health and human rights grounds. However mandatory testing for foreign workers remains in place.
South Africa has a large number of migrant workers, mostly from other countries in the region, and while it does not have restrictions on residence based on HIV status, individuals may be deported for other reasons. Human Rights Watch believes that the deportation of people with HIV to neighbouring countries where medical care is inadequate is against both the South African constitution and international treaties.
It notes cases where migrant workers, sometimes co-infected with multi-drug resistant tuberculosis, have been left at the border of their home country, without any treatment or referral. The authors say that this can amount to a death sentence.
The United States is also criticised for not ensuring access to treatment either while people are detained before deportation, or at their destination.
The report notes that even if antiretroviral treatment is available in principle in a country, regional unavailability, an individual’s lack of understanding of the health system, language barriers, lack of community ties, waiting lists, lack of second or third-line drugs, and medication shortages can all make treatment unavailable in practice.
The report’s authors recommend that national governments:
- 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 sending individuals to situations where they may face inhuman or degrading treatment.
- Where feasible, contact health authorities and providers in each deportee’s country of origin, devise a plan for continuing to assure care without interruption, and provide a temporary medication supply if necessary.
Speaking at an event to launch the report at the House of Commons in London yesterday, Titise Kode of the African HIV Policy Network noted that the report described situations across the world that also had parallels in the United Kingdom.
She called for greater coherence between the policies of the Home Office, the Department of Health and the Department for International Development, and urged the UK government to ensure that deportation or removal did not lead to withdrawal of treatment.