ILO Recommendation¹

Refusal of residence permit to foreign national on the basis of HIV-positive status/Use of international law as a guide for interpreting European human rights law

The claimant moved to Russia from Uzbekistan and applied for a residence permit.  As part of this process, pursuant to the HIV Prevention Act 1995, he was required to provide documentary evidence he was free of HIV infection. The claimant underwent an examination and was diagnosed as HIV positive. His application for residency was subsequently denied. The claimant again applied for a residence permit in April 2009, which was denied. The Federal Migration Service noted his circumstances and imposed a fine of 2500 Russian roubles for unlawful residence and ordered him to leave Russia within three days or be subject to deportation.

The claimant challenged this order by making an application to the District Court. This court rejected the applicant’s claim, finding that it was proper to reject his application given his HIV positive status. The claimant unsuccessfully presented an appeal. He then commenced proceedings before the European Court of Human Rights (“ECHR”) against the Russian Federation, claiming that the decision to refuse him authorisation to reside in Russia had been discriminatory and disproportionate to the legitimate aim of the protection of public health and had disrupted his right to live with his family and so breached Article 14 (when taken with Article 8) of the European Convention on Human Rights.

In considering the claim, the ECHR noted international law did “not recognise a right to settle in a foreign country and travel restrictions may not be illegitimate per se when applied in a neutral fashion; however, those same restrictions will be in breach of anti-discrimination standards if they single out persons living with HIV for differential treatment without an objective justification.”²

The ECHR stated:

“The Court has consistently held that it takes into account relevant international instruments and reports in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field (…)”.³

In this context the ECHR observed:

“The World Health Organization rejected travel restrictions as an ineffective way to prevent the spread of HIV as long ago as 1987 (Report on the Consultation on International Travel and HIV Infection, 2-3 March 1987). The same view has since been expressed by the UN High Commissioner for Human Rights (see the extracts from the International Guidelines on HIV/AIDS and Human Rights, cited in paragraph 34 above), the International Organization for Migration (see the UNAIDS/IOM statement, cited in paragraph 33 above), the UN High Commissioner for Refugees (UNHCR, Note on HIV/AIDS and the Protection of Refugees, IDPs and Other Persons of Concern, 2006), the World Bank (Legal Aspects of HIV/AIDS, 2007), and, most recently, the International Labour Organization (ILO Recommendation concerning HIV and AIDS and the World of Work, no. 200, 2010).”⁴

Having used ILO Recommendation No. 200 as a guide for interpreting the Articles 8 and 14 of the European Convention on Human Rights, the ECHR determined that, although the protection of public health was a legitimate aim, Russia had failed to show how its national security and public health needs were advanced by denying a residence permit to the claimant, noting Russia’s position was that the claimant could continue to live in Russia with his family so long as he stayed no more than 90 consecutive days.  The ECHR determined that “the Government overstepped the narrow margin of appreciation afforded to them in the instant case.  The applicant has therefore been a victim of discrimination on account of his health status, in violation of Article 14 of the Convention taken together with Article 8,”⁵ and awarded the applicant 15,000 euros for damages.

¹ ILO HIV and AIDS and the World of Work Recommendation, 2010 (No. 200).

² Paragraph 48 of the decision.

³ Paragraph 67 of the decision.

⁴ Paragraph 67 of the decision.

⁵ Paragraph 74 of the decision.