Opposition to Immigration Policies Requiring HIV Tests as a Condition of Employment for Foreign Nationals

  • Date: Nov 01 2016
  • Policy Number: 20168

Key Words: Hiv Aids, Immigration, Global Health, International Health, Employment

Abstract

All people have the right to confidential and voluntary HIV testing and counseling, and people living with HIV/AIDS have the right to privacy, to employment, and to appropriate medical care under long-standing established human rights principles. However, HIV-related restrictions against entry, stay, and residence remain common around the world. Various countries have policies that mandate HIV testing of all or certain groups of foreign nationals as a condition of obtaining a visa for employment. These policies have no basis in science and violate migrant workers’ human rights to confidentiality and informed consent to testing, exposing them to exploitation by their employers. According to the Joint United Nations Programme on HIV/AIDS, 35 countries currently have official HIV-related travel restrictions. In many cases, such policies directly affect US citizens living and working abroad. Furthermore, HIV-related travel restrictions against foreign nationals have been shown by international treaty bodies, international legal scholars, and human rights organizations to constitute discrimination based on race, ethnicity, and/or country of origin. APHA’s long-standing opposition to racism and commitment to equity and social justice make this resolution a logical and much-needed addition to the association’s policy base.

Relationship to Existing Policy Statements

  • APHA Policy Statement LB-15-02 (Opposition to Policies Requiring a Negative HIV Test as a Condition of Employment for Foreign Nationals), adopted at the annual meeting in November 2015, reaffirms APHA’s opposition to the use of HIV test results to discriminate against foreign nationals seeking employment outside their country of origin, and it calls on human rights groups to emphasize that all HIV testing is voluntary and that all people living with HIV/AIDS deserve access to counseling and medical care. The impetus for this late-breaker policy statement was the ruling of the UN Committee on the Elimination of Racial Discrimination that the Republic of Korea’s practice of requiring HIV tests for foreign English teachers constitutes racial discrimination; the policy urges the US government to pressure the Republic of Korea to eliminate its HIV testing requirement for employment visa applicants and encourages the Joint United Nations Programme on HIV/AIDS (UNAIDS) to revoke Korea’s status as a nation without HIV-related restrictions.
  • Policy Statement 7632(PP) (Policy Statement on International Health) establishes APHA’s overall commitment to international health and specifically outlines APHA’s intention to support initiatives that promote funding, research, workforce development, and scholarly collaboration in public health around the world. It states that “APHA should exert its influence in helping to achieve for all countries the goals…in the Constitution of the World Health Organization” and that "APHA should do whatever it can to help the forces of democracy, humanity, and equity in all countries."
  • Policy Statement 8223 (Avoiding the Public Health Consequences of Anti-Immigrant Racism) applies APHA’s long-standing opposition to racism to anti-immigrant sentiment in particular, and it recognizes that the economic and social pressures faced by immigrants and exacerbated by racism can have deleterious effects on outcomes related to both health and health care.
  • Policy Statement 8701 (Irrational Response to the Fear of the Spread of the Virus that Causes AIDS) establishes APHA’s stance against HIV-related stigma and its commitment to the rights of people with HIV in the United States. In addition, it states APHA’s position that all public health measures to control HIV should be scientifically based.
  • Policy Statement 8927 (HIV Guidelines for the Workplace) urges US employers to provide accurate information about HIV to their employees, to not discriminate against individuals with HIV, and to ensure the confidentiality of employees’ medical information.
  • Policy Statement 9013 (Immigration Policies Related to Communicable Diseases) takes a firm stance against the US entry ban on HIV-positive individuals and supports the development of immigration policies based on science.

Problem Statement

According to UNAIDS, 35 countries currently have official HIV-related travel restrictions openly acknowledged and enforced by the government.[1] These restrictions vary from outright entry bans, which bar people living with HIV/AIDS from entering the country, to restrictions on stays longer than a specified period of time.[2–4] Other countries have inconsistent policies and/or intentionally misrepresent their policies with respect to HIV-related restrictions[5]; for example, while UNAIDS noted 59 countries with HIV-related travel restrictions in 2008,[6] Human Rights Watch documented 66 countries with such restrictions the same year.[2] In addition, a survey of German embassies conducted by Deutsche AIDS-Hilfe around the same time showed that 97 countries had some form of HIV-related travel restrictions, including 31 that deported people living with HIV/AIDS.[7]

Such policies and practices, and the number of migrants affected by them, are difficult to track because of differing or ambiguous definitions[8] and a lack of data.[7,8] Some of the most restrictive policies subject immigrants to mandatory HIV testing when they apply for residency or for an employment visa, which is frequently required by states for legal residency.[3,7,9–11] Countries that currently require proof of migrants’ HIV-negative status for employment include (but are not limited to) all Gulf Cooperation Council nations (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates),[10] South Korea,[5,9,12] Cyprus, Russia,[3] Sri Lanka,[2] and Egypt.[13]

Restrictions on travel, immigration, or residence related to HIV status are a violation of the principles of nondiscrimination and equal treatment included in all international human rights laws, treaties, and agreements.[2,4,14] The International Covenant on Civil and Political Rights guarantees the right to equal protection under the law, free from discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, and the UN Commission on Human Rights has determined that this includes discrimination based on health status, including HIV infection. According to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, while international human rights law allows governments to restrict rights in cases of emergency or serious public concern, the restrictions must be the minimum necessary to effectively address the concern—and HIV-related travel restrictions have been overwhelmingly ruled as both overly intrusive and ineffective.[4] Within such restrictions, compulsory HIV testing is a serious violation of numerous human rights principles, including the right to bodily integrity and dignity.[15] The accompanying deportation and/or loss of employment and residency status of HIV-infected migrants that frequently accompany such testing violate the rights of people with HIV/AIDS to privacy, work, and appropriate medical care.[2,14] The International Labour Organization has specifically stated that neither HIV tests nor private HIV-related personal information should be required of employees or job applicants.[15,16]

These policies also violate migrants’ human rights to confidentiality and informed consent to testing and expose them to exploitation by their employers. For example, a 2007 study conducted by CARAM Asia (Coordination of Action Research on AIDS and Mobility) on mandatory HIV testing policies showed that migrants were routinely tested without informed consent, not provided with test counseling, deprived of confidentiality with respect to test results, denied treatment and employment, and in some cases deported.[11]

HIV-related travel restrictions are often used as a means of reducing or slowing immigration, excluding foreign workers from jobs, addressing citizens’ concerns regarding foreign influences and cultural infringement, and appeasing voters.[17] Policies restricting entry and residence among people with HIV/AIDS are typically rooted in social, economic, and/or political pressures; an overwhelming portion (89%) of World Health Organization member countries with high percentages of foreign nationals have HIV-related travel restrictions.[8] Furthermore, government policies requiring an HIV test (to prove HIV-negative status) in order to obtain a work visa and/or residency have been used to discriminate against migrants and asylum seekers[18] and may be direct manifestations of xenophobia or anti-immigrant sentiment.[9,19]

For example, in a recent case against the government of South Korea filed with the United Nations Committee on the Elimination of Racial Discrimination, the country’s Ministry of Justice admitted that its policy requiring HIV tests for foreign English teachers (while there is no such requirement for Korean citizens or even noncitizens of Korean ethnicity[20]) was put in place to “ease the anxiety of [Korean] citizens.”[9] After finding that the policy “does not appear to be justified on public health grounds or any other ground, and is a breach of the right to work without distinction to race, colour, [or] national or ethnic origin,” the committee ruled that it constituted racial discrimination.[21] Officials in Greece have also used police-mandated HIV testing as a means of officially sanctioned discrimination against migrants,[18,19] and British officials have suggested implementation of HIV testing for immigrants and asylum seekers to the United Kingdom[22,23] at a time of high anti-immigrant sentiment.[24–26]

Evidence-Based Strategies to Address the Problem

The clear strategy to address this issue is to repeal policies requiring HIV tests for visa issuance and employment and to ensure that agencies and businesses that employ foreign nationals do not use HIV tests as a means to discriminate against potential employees.[2,10,15,16,27] Human rights and HIV/AIDS advocacy organizations should continue to push for removal of mandatory HIV testing of migrants, along with all HIV-related travel and immigration restrictions. Also, they should call for all HIV testing to be voluntary and confidential.[2] In addition, legal and government resources should be shifted from maintaining and enforcing HIV-related restrictions, which are time consuming and costly, to providing HIV prevention and treatment services that are equally accessible to citizens and foreign nationals.[2,4] Migrant workers should have access to culturally appropriate HIV prevention and care programs in languages they can understand.[27]

Increasing awareness of the discrimination, human rights violations, and harms related to mandatory testing and other HIV-related travel restrictions and accompanying pressure from multilateral institutions and human rights advocates have begun to prompt countries to lift travel bans and change their immigration policies.[4] UNAIDS, the United Nations body exclusively focused on eliminating HIV/AIDS worldwide, actively advocates for the elimination of HIV-related travel restrictions. In 2008, UNAIDS established the International Task Team on HIV-related Travel Restrictions to “bring together stakeholders concerned with the continued implementation of restrictions on the entry, stay and residence of HIV-positive people who cross borders; examine the current context and impact of such restrictions; and create new energy and action towards their elimination.”[6] The following year, the task team noted in its findings that 59 countries, territories, or areas have laws and policies specifying HIV-related travel restrictions on entry, stay, or residence. Advocacy efforts using this information have resulted in several countries loosening these restrictions or, in some cases, dropping them entirely[4]; for example, the number decreased from 59 to 45 countries in 2011 and to 35 as of September 2015.[1]

These data, although they can serve as a useful advocacy tool, are not perfect. Many countries have inconsistent or conflicting policies related to discrimination based on HIV status.[7,15] Some continue to require or justify HIV testing by citing vague laws or policies, and at least one (South Korea), through deliberate misrepresentation of its policies, received recognition from UNAIDS for lifting travel restrictions when it had not actually done so.[5,28]

Opposing Arguments

The two primary justifications offered by governments for mandatory HIV testing of migrant workers and other HIV-related travel restrictions are to protect public health and to reduce the cost burden on the country’s health care system imposed by providing HIV care services to foreign nationals.[8,22,23,27,29] However, neither of these justifications stand up to scrutiny. While countries have the right to employ measures to protect their populations from communicable diseases of public health concern, HIV is not transmitted by casual contact, and thus there is no scientific basis for attempting to control its spread via immigration policies[2,4,8,10,15,29]; indeed, this was the rationale provided by the US Department of Health and Human Services and the Centers for Disease Control and Prevention for the removal of the US HIV entry ban.[30] Countries that do not have HIV-related travel restrictions have not reported increased negative public health consequences relative to those that do.[29] Furthermore, recent analyses suggest that migration does not affect peak national HIV prevalence, implying that even migration from countries with generalized HIV epidemics does not pose a public health risk to destination countries.[31]

In fact, immigration policies banning or restricting entry or employment based on HIV status often have the opposite effect of their protective intention, causing direct harm to the health of both immigrants and citizens. They marginalize individuals living with HIV/AIDS, regularly discourage people from accessing HIV testing and treatment,[5,31] and reinforce stereotypes and discriminatory attitudes against people with HIV/AIDS in the general population.[32] Regulations requiring HIV tests of immigrants can promote the idea that foreigners are dangerous to the national population and a public health risk,[4,29] as well as creating a false sense of security by reinforcing the notion that only migrants are at risk for infection.[14,27] In addition, such attitudes can adversely affect the host country’s own HIV epidemic, as citizens who are unaware of their HIV-positive status, underestimating their HIV risk and avoiding testing due to stigmatization, are more likely to transmit the virus to others, driving up infection rates.[28,33]

State-enforced HIV screening of migrants costs far more than it saves in treatment expenditures. Since the beginning of the epidemic, numerous health and human rights organizations have made it clear that screening travelers and migrants for HIV is impractical and economically wasteful.[4,8,29] -Labor migrants (both regular and undocumented) bring significant economic benefits to their host countries, in addition to themselves, and this cost-benefit balance remains even when migrants are HIV positive and rely on the host country’s health care system for treatment and support.[3,10,27]

Action Steps

APHA recommends that:

  1. UNAIDS, the World Health Assembly, and other HIV and human rights organizations (e.g., Amnesty International, Human Rights Watch, International Labour Organization) continue to call on all countries that still maintain and/or enforce HIV-related restrictions on entry, stay, or residence to eliminate such restrictions, ensuring that all HIV testing is confidential and voluntary and that counseling and medical care are available to all people living with HIV/AIDS within a country’s borders, including migrants and foreign nationals.
  2. UNAIDS take steps to ensure that its protocols for researching and investigating countries’ HIV-related travel restrictions are sufficiently thorough by monitoring and documenting any reported instances of HIV-related discrimination targeting immigrants, particularly when presented with evidence demonstrating that recognition of a country’s removal of travel restrictions is unwarranted, in order to ensure that governments are not able to misrepresent their policies to gain undeserved recognition for supporting human rights with regard to HIV/AIDS.

References
1. Joint United Nations Programme on HIV/AIDS. Lithuania confirms no restrictions on entry, stay and residence for people living with HIV. Available at: http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2015/september/20150917_Lithuania. Accessed January 11, 2017.
2. Human Rights Watch. Discrimination, denial, and deportation: human rights abuses affecting migrants living with HIV. Available at: https://www.hrw.org/sites/default/files/reports/health0609webwcover_0.pdf. Accessed January 11, 2017.
3. Committee on Migration, Refugees and Displaced Persons. Migrants and refugees and the fight against AIDS. Available at: http://www.integrazionemigranti.gov.it/Documenti-e-ricerche/Migrants%20and%20refugees%20and%20the%20fight%20against%20AIDS_Council%20of%20Europe_2014_EN.pdf. Accessed January 11, 2017.
4. Amon J, Todrys KW. Fear of foreigners: HIV-related restrictions on entry, stay, and residence. J Int AIDS Soc. 2008;11:8.
5. Amon J. Seoul’s broken promises on HIV testing. Available at: http://thediplomat.com/2013/06/seouls-broken-promises-on-hiv-testing/. Accessed January 11, 2017.
6. Joint United Nations Programme on HIV/AIDS. The impact of HIV-related restrictions on entry, stay and residence: an annotated bibliography. Available at: http://www.unaids.org/sites/default/files/media_asset/jc1729_bibliography_en_0.pdf. Accessed January 11, 2017.
7. Horn T. At least 31 countries deporting people living with HIV. Available at: https://www.poz.com/article/hiv-deportation-migrant-18781-6045. Accessed January 11, 2017.
8. Chang F, Prytherch H, Nesbitt RC, Wilder-Smith A. HIV-related travel restrictions: trends and country characteristics. Glob Health Action. 2013;6:20472.
9. Wagner BK, VanVolkenburg M. HIV/AIDS tests as a proxy for racial discrimination? A preliminary investigation of South Korea’s policy of mandatory in-country HIV/AIDS tests for its foreign English teachers. J Korean Law. 2012;11:179–245.
10. Joint United Nations Programme on HIV/AIDS. The gap report. Available at: http://www.unaids.org/sites/default/files/media_asset/UNAIDS_Gap_report_en.pdf. Accessed January 11, 2017.
11. State of Health of Migrants 2007: Mandatory Testing. Kuala Lumpur, Malaysia: CARAM Asia; 2007.
12. English Program in Korea. Contract for fall 2015 English Program in Korea. Available at: https://www.epik.go.kr/contents.do?contentsNo=54&menuNo=283. Accessed January 11, 2017.
13. Bahgat H. Egypt: protection of the rights of all migrant workers and members of their families. Available at: http://eipr.org/en/report/2007/04/01/635. Accessed January 11, 2017.
14. Global Commission on HIV and the Law. Risks, rights, and health. Available at: http://www.hivlawcommission.org/resources/report/FinalReport-Risks,Rights&Health-EN.pdf. Accessed January 11, 2017.
15. International Labour Organization, Subregional Office for East Asia, and International Organization for Migration. Mandatory HIV Testing for Employment of Migrant Workers in Eight Countries of South-East Asia: From Discrimination to Social Dialogue. Bangkok, Thailand: International Labour Organization; 2009.
16. International Labour Organization. The ILO code of practice on HIV/AIDS and the world of work. Available at: http://www.ilo.org/global/publications/KD00015/lang--en/index.htm. Accessed January 11, 2017.
17. Lazarus JV, Curth N, Weait M, Matic S. HIV-related restrictions on entry, residence, and stay in the WHO European Union: a survey. J Int AIDS Soc. 2010;13:2.
18. Human Rights Watch. Greece: Human Rights Watch submission to the United Nations Committee against Torture. Available at: https://www.hrw.org/news/2014/03/24/greece-human-rights-watch-submission-united-nations-committee-against-torture. Accessed January 11, 2017.
19. Varoufakis Y. Sick predators: how a dying regime preyed upon women with HIV, invested in wholesale racism, and endangered public health. Available at: http://wdwreview.org/desks/sick-predators/. Accessed January 11, 2017.
20. Kang SW. Foreign teachers say visa-rule biased. Available at: http://www.koreatimes.co.kr/www/news/nation/2008/10/117_32169.html. Accessed January 11, 2017.
21. UN Office of the High Commissioner for Human Rights. Republic of Korea’s foreigners-only HIV tests violated New Zealand teacher’s rights—UN experts. Available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15981&LangID=E. Accessed January 11, 2017.
22. Withnall A. Nigel Farage defends his policy of banning immigrants with HIV from UK. Available at: http://www.independent.co.uk/news/uk/politics/eu-referendum-nigel-farage-andrew-marr-brexit-ukip-vote-leave-immigration-migrants-hiv-ban-from-uk-a7077716.html. Accessed January 11, 2017.
23. Watt N. Keep HIV-positive migrants out of Britain, says Ukip’s Nigel Farage. Available at: http://www.theguardian.com/politics/2014/oct/10/nigel-farage-keep-hiv-positive-migrants-out-britain. Accessed January 11, 2017.
24. Calamur K. Will Brexit actually curb immigration to the U.K.? Available at: http://www.theatlantic.com/news/archive/2016/06/brexit-migration/489014/. Accessed January 11, 2017.
25. Al Jazeera. UN urges UK to end xenophobic attacks after Brexit vote. Available at: http://www.aljazeera.com/news/2016/06/uk-xenophobic-attacks-brexit-vote-160628171147062.html. Accessed January 11, 2017.
26. Grose TK. Anger fuels the U.K.’s Brexit campaign. Available at: http://www.usnews.com/news/best-countries/articles/2016-06-16/anger-at-immigration-fuels-the-uks-brexit-movement. Accessed January 11, 2017.
27. Joint United Nations Programme on HIV/AIDS, International Labour Organization, and International Organization for Migration. International labor migration: policy brief. Available at: http://www.hivlawandpolicy.org/resources/hiv-and-international-labour-migration-policy-brief-unaids-international-labour. Accessed January 11, 2017.
28. Keralis JM. South Korea still requires HIV test for some visas, as its own HIV rates climb. Available at: http://www.humanosphere.org/global-health/2015/12/south-korea-hiv/. Accessed January 11, 2017.
29. Klein A. HIV/AIDS and Immigration: Final Report. Montreal, Quebec, Canada: Canadian HIV/AIDS Legal Network; 2001.
30. Centers for Disease Control and Prevention. Removal of HIV entry ban from immigration medical screening. Available at: https://www.cdc.gov/immigrantrefugeehealth/pdf/final-rule-hiv-removal-fact-sheet.pdf. Accessed January 11, 2017.
31. Kenyon C, Colebunders R, Voeten H, Lurie M. Migration intensity has no effect on peak HIV prevalence: an ecological study. BMC Infect Dis. 2014;4:350.
32. Kirby M. Human rights and the HIV paradox. Lancet. 1996;348:1217–1218.
33. Aponte-Rivera VR, Dunlop BW. Public health consequences of state immigration laws. South Med J. 2011;104:718–719.