Table 4: HIV, AIDS and the right to seek and enjoy asylum

Table 4: HIV, AIDS and the Right to Seek and Enjoy Asylum

Examples of Human Rights Violations

  • A State returns an asylum-seeker to a country where she or he faces persecution on the basis of HIV status or HIV activism.
  • A State excludes persons living with HIV from being granted asylum, or discriminates on the basis of HIV status in the context of travel regulations, entry requirements or immigration and asylum procedures.
  • Refugees and asylum seekers face discrimination in access to HIV prevention and treatment services.
Human Rights Standards Treaty Body Interpretation
ICCPR 14(1): All persons shall be equal before the courts and tribunals. HRC: Has confirmed that the right to equal protection of the law prohibits discrimination in law or in practice in any fields regulated and protected by public authorities. This would include travel regulations, entry requirements, and immigration and asylum procedures.
Human Rights Standards Case Law
ECHR 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ECtHR: Held that refusing a residence permit to a foreign national solely on the basis of their HIV-positive status amounted to unlawful discrimination. Kiyutin v. Russia, 2700/10 (March 10, 2011).

Other Interpretations 

Special Rapporteur on Trafficking: Recommending to Lebanon that “[p]otential victims of trafficking and exploitation, including women that have contracted HIV/AIDS or other sexually transmitted diseases, must not be immediately deported but given adequate legal, medical and social assistance, including access to interpretation in language they understand.” E/CN.4/2006/62/Add.3 (SR Trafficking, 2006)

Geneva Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to Status of Refugees). Defining “refugee” and providing rule of non-refoulement.

Convention Against Torture 3(1): No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The United Nations High Commissioner for Refugees issued policy guidelines in 1988 stating that refugees and asylum seekers should not be targeted for special measures regarding HIV infection and that there is no justification for screening to exclude HIV-positive individuals from being granted asylum.

Declaration of Territorial Asylum, G.A. Res. 2312 (XXII) (December 14, 1967).

Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted September 10, 1969 (entered into force June 20, 1974).

Recommended Guidelines on Human Rights and Human Trafficking

Guideline 2(7): Ensuring that procedures and processes are in place for receipt and consideration of asylum claims from both trafficked persons and smuggled asylum seekers …

Guideline 6(8): Measures should be taken to ensure the provision of appropriate physical and psychological health care, housing and educational and employment services for returned trafficking victims.

HIV-related restrictions on entry, stay, and residence, UNAIDS Human Rights and Law Team, July 2012, available at: Restrictions listed by country.