INTRODUCTION

The HIV pandemic is changing.

In the UK, numbers of diagnosed HIV infections continue to increase, while the proportion of individuals infected through sex between men fell from 57% in 1995 to 32% in 2002. Correspondingly, the proportion of individuals infected through heterosexual sex rose from 33% in 1995 to 64% in 2002. (Health Protection Agency, 2003)

Furthermore, annual numbers of heterosexually acquired HIV infections have outnumbered those in MSM each year since 1999. Of these, 71% were in people of African descent, or who had acquired their infection on the African Continent (1,735 of 2,444).

In short, the focus of traditional UK HIV prevention, treatment and advocacy work is being challenged by changed realities of increased human mobility and the domestic impact of the growing pandemic.

NAT holds that the current media-led debate around these issues needs to be replaced by informed and rational discussions on the best way to respond. Calls for simplistic and xenophobic solutions to this international public health crisis need to be challenged.

NAT is developing a policy position in response to the changing nature of the HIV pandemic, and is looking forward to taking part in a constructive debate of these issues. As part of these efforts, NAT convened a roundtable discussion on HIV and Mobility on 23 April with other HIV- and human rights organisations. As part of this ongoing debate, NAT would welcome the opportunity to outline its views to the Parliamentary Health Select Committee.

This paper intends to give a brief outline of the immigration policies other countries have implemented vis-a"-vis people living with HIV, as a way of comparing the UK's policies in an international context. It is primarily based on the findings of the Canadian HIV/AIDS Legal Network's HIV/AIDS and Immigration: Final Report, and the help of the Dutch AIDSFONDS.

DEFINITIONS

For the purposes of this paper, non-citizens seeking to enter a country have been divided into three broad categories: visitors, immigrants and refugees. This distinction is, needless to say, an idealised construct, and does not adequately describe the complex reality of contemporary population mobility. People may change status, sometimes repeatedly, from visitor to refugee to immigrant, with or without significant changes in the circumstances of the person's life. Bearing this in mind, the definitions are as follows:

Visitor

A non-citizen in the country, or who is seeking to come into the country, for a temporary purpose. (eg students, temporary workers or tourists etc).

Immigrant

A person who seeks lawful permission to establish permanent residence in the country. A person who has been granted entry to the country, but has not been granted citizenship, is sometimes referred to as a "landed immigrant," or a "permanent resident."

Refugee

International law defines a refugee as a person who: (1) is outside his/her country of nationality or former habitual residence; (2) has a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion, and (3) is unable or, owing to that fear, unwilling to return their country of origin.

INTERNATIONAL LAW

The 1951 UN Convention Relating to the Status of Refugees binds all countries surveyed in this paper. Article 33 of the Convention states that countries that have acceded to the Convention may not expel or return a refugee according to the principle of non-refoulement. A country in which a refugee is seeking asylum can expel a refugee only if the refugee constitutes a danger to the security of the country, or if the refugee has been convicted of a serious crime. Furthermore, restricting access to asylum seekers prior to entry to the country would breach the Refugee Convention.

EUROPEAN UNION

Article 14 of the European Community Treaty ensures the free movement of persons within the European Union. According to the Schengen treaty, signed by all members except Denmark, Ireland and the UK, internal borders may be crossed without restrictions of any kind, including health-related restrictions.

However, non EU-country citizens are required to make a declaration as to their nationality and their entry into the country when they travel among Schengen signatory states.

Refugees are not required to submit to mandatory HIV testing in European Union states. All EU countries respect the principle of non-refoulement, and do not return refugees on health grounds.

Furthermore, the European Court of Human Rights has found that returning someone who is HIV positive to a country where there is a complete absence of treatment, facilities or social support, and which could result in an imminent and/or lingering death and cause acute physical suffering, can give rise to our obligations under Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhumane treatment.

Beyond these criteria, each EU country determines its own policy independently. The policies of EU-Members UK, France, Germany and the Netherlands are examined below.

THE UNITED KINGDOM

Immigration Law and HIV

There is no mandatory HIV testing of any immigrants. However, non-EU citizens seeking entry to the UK may be examined by a medical inspector.

Visitors: Testing

There is no mandatory HIV testing of visitors to the UK.

Visitors: Entry Restrictions

An HIV-positive visitor will not be automatically excluded on the grounds of public health or public purse. However, if it appears that public health may be at risk, advice would be sought from the Department of Health, and the applicant could be excluded. However, applicants for short-term entry who are known to be HIV-positive must prove that they have sufficient means to pay for medical treatment while in the UK.

Immigrants: Testing

Non-EU citizens seeking to reside in the UK for more than six months are required to report to a medical inspector, although this is not effectively enforced.

Immigrants: Entry Restrictions

If an applicant is suffering from an illness that might affect their ability to support themselves and their family (as HIV/AIDS may be), this will be taken into account in deciding whether to grant a right of residence. There is, however, no automatic exclusion on public health or public purse grounds.

Refugees: Testing and Entry Restrictions

As European Union Law.

FRANCE

Immigration Law and HIV

France does not have automatic mandatory HIV testing of visitors, immigrants or refugees.

Visitors: Testing

Visitors planning to stay more than three months are required to undergo a medical examination, sometimes including HIV testing if the applicant shows signs of infection.

Visitors: Entry Restrictions

People living with HIV are not refused entry.

Immigrants: Testing

Immigrants, like visitors, are required to undergo a medical examination including an HIV test if the applicant shows signs of infection.

Immigrants: Entry Restrictions

HIV status should not directly impact on application, but the applicant is required to meet the general conditions for the granting of residence.

Refugees: Testing and Entry Restrictions

As European Union Law.

GERMANY

Immigration Law and HIV

The German Aliens Act does not require medical examinations for entering the country. The Land of Bavaria, however, has enacted several measures aimed at preventing the entry of non-EU nationals with HIV/AIDS, and requires mandatory HIV testing for applicants intending to stay more than three months.

Visitors: Testing

No mandatory medical test.

Visitors: Entry Restrictions

No entry restrictions on HIV grounds for short- and medium-term stay.

Immigrants: Testing

No mandatory medical test.

Immigrants: Entry Restrictions

German law allows the refusal of an applicant on public health grounds, and can request a medical certificate if there are grounds to suspect that is the case. Accordingly, HIV positive people can be refused permanent residency if they are asked to submit an HIV test as part of this medical investigation.

Refugees: Testing and Entry Restrictions

As European Union Law.

THE NETHERLANDS

Immigration Law and HIV

The Netherlands does not have a mandatory testing programme for visitors or immigrants, nor any restrictions on entry for HIV-positive people. They do, however, have a system for mandatory testing and treatment of refugees.

Visitors: Testing

There is no mandatory HIV testing of visitors.

Visitors: Entry Restrictions

There are no HIV-related entry restrictions for visitors. There is, however, a Tuberculosis screening programme, and all visitors are required to have a health insurance.

Immigrants: Testing

There is no mandatory HIV testing of immigrants. Immigrants are tested for tuberculosis.

Immigrants: Entry Restrictions

There are no HIV-related entry restrictions for immigrants.

Refugees: Testing and Entry Restrictions

The Netherlands have a mandatory HIV testing, but HIV status does not impact on right of stay. Rather, it is a public health initiative to ensure access to treatment and minimise transmission risk. Immigration law otherwise as per European Union Law.

CANADA

Immigration Law and HIV/AIDS

The Immigration Act does not mention HIV/AIDS. However, any applicant can be rejected if s/he is likely to be a danger to public health, or might reasonably be expected to cause excessive demands on health or social services.

Visitors: Testing

Visitors are not required to undertake any medical examination. However, there is a caveat for three "prescribed classes" of visitors who are required to undergo an examination, which may include an HIV test:

—visitors in occupations where the protection of public health is essential;

—persons who wish to remain in Canada for longer than six months; and

—visitors who have recently resided in a country where the incidence of communicable disease is higher than in Canada.

Visitors: Entry Restrictions

HIV/AIDS is not an automatic barrier to entry: Asymptomatic HIV-Positive visitors staying less than 6 months are not denied entry. Nor can visitors be denied entry on grounds of public purse unless there is a reason to believe that the person would need publicly funded treatment during his/her stay.

Immigrants: Testing

The Immigration Act requires every Immigrant to undergo a medical examination, which usually takes place in the country of origin. This test does not include an HIV test. However, immigration officials may learn of an applicant's HIV status in three ways:

—The application form asks of any serious illness (failure to disclose illness, If any, may lead to rejection)

—The examination also includes a question of HIV status

—The medical officer may order a test if it is "clinically indicated"

Immigrants: Entry Restrictions

There is no automatic exclusion of HIV positive applicants on the grounds of protecting public health. However, HIV positive people are generally rejected on the basis of "excessive demand" on the public purse. There is as yet no satisfactory legal definition of "excessive demand", and this remains an area of debate.

Refugees: Testing and Entry Restrictions

Refugees inside Canada are required to undergo a medical test (sometimes including an HIV test as above), but cannot be denied entry/stay on public purse or health grounds.

Refugees in other countries are required to undergo a medical test and may be denied entry on the grounds of public purse or public health. (This policy is currently under review, and may be subject to change.)

UNITED STATES OF AMERICA

Immigration Law and HIV

The US Immigration and Naturalisation Service runs the largest mandatory HIV testing program in the world.

Visitors: Testing

There is normally no mandatory testing for Visitors, but Visa application forms obligate the visitor to disclose of any serious illnesses.

Visitors: Entry Restrictions

In the event that a visitor is HIV positive, s/he can be refused entry on public health grounds. However, HIV positive visitors can obtain waivers allowing them to stay in the US for 30 days if they are in the US to:

—participate in academic or health related activities;

—conduct temporary business;

—seek medical treatment (on their own cost); or

—visit close family members.

Immigrants: Testing

Every applicant for permanent residency over the age of 15 faces mandatory HIV testing, without informed consent or pre- or post-test counselling.

Immigrants: Entry Restrictions

Applicants who test positive are refused entry on public health grounds. However, the applicant can obtain waivers if s/he has close family in the US, and can prove:

—that there are humanitarian reasons for entry;

—that s/he will present no danger to the public health of the US; and

—that s/he will impose no cost on the public purse.

Refugees: Testing and Entry Restrictions

Refugees applying from within the US are protected by the principle of non-refoulement. Refugees applying from third countries are required to undertake and HIV-test following similar lines as immigrants.

AUSTRALIA

Australia does not automatically refuse entry of people with HIV for public health reasons. Its wide use of testing is described in its National HIV/AIDS Strategy as a means of reducing the impact on public purse. Although the immigration guidelines are generally restrictive, few if any applicants are rejected on HIV grounds alone.

Immigration Law and HIV

Resembles the Canadian approach. Applicants with HIV are assessed according to potential cost, in the same manner as applicants living with other serious or chronic diseases.

Visitors: Testing

Medium and long-term visitors (students, holiday workers, etc) undergo a mandatory medical examination, normally in the country of departure. HIV testing is mandatory for visitors seeking to stay longer than 12 months.

Visitors: Entry Restrictions

HIV-positive visitors are generally not excluded, as they pose little risk to the public purse.

Immigrants: Testing

Applicants for permanent residency aged 15 or older undergo a mandatory medical examination including an HIV test.

Immigrants: Entry Restrictions

Applicants can be excluded if their expected impact on the public purse is considered too costly. According to a government calculus on future health costs of HIV positive applicants, even a-symptomatic HIV positive applicants may be rejected. Waivers can be obtained only if the applicant has immediate Australian family.

Refugees: Testing and Entry Restrictions

Refugees largely follow the same guidelines as immigrants: If applicants fail the medical test, they must apply for a waiver on humanitarian grounds.

NEW ZEALAND

Immigration Law and HIV

The Ministry of Immigration has recently introduced mandatory HIV testing of immigrants. As in Australia, cost estimates inform a case-by-case assessment of applicants.

Visitors: Testing

No mandatory testing of visitors intending to stay two years or less.

Visitors: Entry Restrictions

HIV status would not normally impact on short-term visitors. However, it remains possible to exclude HIV positive visitors on public health grounds.

Immigrants: Testing

Mandatory testing of all applicants.

Immigrants: Entry Restrictions

All applicants with HIV who seek residence for more than two years may be excluded if they are expected to make demands on health services in excess of approximately NZ$20,000 over five years.

Refugees: Testing and Entry Restrictions

All refugees are required to undergo an HIV test, although the applicant's HIV status should not impact on his/her application.