However, Ms. Mortlock was HIV-positive, and required a complicated medical regime that was unavailable in Jamaica in order to survive. Mortlock and her attorneys filed a petition with the Inter-American Commission on Human Rights in a last-ditch effort to halt her deportation. 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.
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Recommending that the United States refrain from deporting Ms. 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.
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. National protections against refoulement , however, are often insufficient or underdeveloped to protect the rights of people living with HIV against unlawful return.
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. 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.
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. 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.
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Under international human rights law, states have an obligation to refrain from refoulement of all individuals. 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.
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. Following the principle of non-refoulement , states are also prohibited from removing individuals protected by the Convention Relating to the Status of Refugees and its Protocol.
At Least 31 Countries Deporting People Living With HIV
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. 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. 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.
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.
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.
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.
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That same day, Heo was detained in a foreign internment camp, and a departure order directing him to leave by May 21, 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.
Deportation of migrants with HIV often contravenes human rights treaties
Under the measure, immigration officials could require drug and HIV testing of any foreigner seeking a work visa. 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. Reports describe migrants jailed upon discovery of HIV status, held, and deported from Saudi Arabia, often without any explanation or discussion of their condition.
Severe stigma and discrimination face many migrants returned from Saudi Arabia. In , 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. 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.
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.
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. Those testing positive may be deported. 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.
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 ,  compared with an overall population of 47 million. 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. 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.
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.
In , the UN estimated that 1.
Refworld | Returned to Risk: Deportation of HIV-Positive Migrants
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 commendable initiatives to ensure continuous cross-border HIV treatment to deportees exist in the United States. 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. Some criminal deportees do not survive such detention. 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. 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.
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.