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. 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.
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 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.
Republic of South Korea
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 noncitizen 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 HIVpositive 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.46 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.60 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 Africa68—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.
Main criteria taken under consideration before deportation
- European Court of Human Rights:
• The deportee’s present medical condition, and whether it is at an advanced or terminal stage
• The availability of family and friend support in the receiving country
• The availability of medical care in the receiving country
- Inter-American Commission on Human Rights:
• Whether an extraordinary hardship would be created given
• The availability of medical care in the receiving country
• The availability of social services and support, in particular the presence of close relatives