Barring None: Overturning HIV Related Travel and Immigration Restrictions
07/20/2009
Lyndel Urbano and Nathan Schaefer reflect on the implications of travel and immigration restrictions for HIV positive people
Twelve countries around the world, including the United States, have HIV related travel restrictions in place that ban or make it extremely difficult for HIV-infected people to travel, even for a short time, to these countries. They are: Armenia, Brunei, Iraq, Libya, Moldova, Oman, Qatar, the Russian Federation, Saudi Arabia, South Korea, Sudan, and the United States. Sixty-seven countries make it impossible for HIV positive people to change immigration status.
Depending on the country, the restrictions target individuals who plan to come to the country as tourists, for business, to visit family, or other short-term personal reasons. In some cases, they target HIV-positive people seeking longer stays for educational purposes, employment or those seeking to become permanent residents or citizens of the countries. These restrictions have been found to harm public health and economic efforts and have grave implications for the human rights of people living with HIV/AIDS.
The United States travel and immigration ban disallows the entry of HIV-positive non-citizens into the country and prohibits HIV positive non-citizens from becoming permanent legal residents. Implemented in 1987 at a time when discrimination drove public health policy, the bar actually leads to more cases of HIV among immigrants. The ban also serves as a disincentive for immigrants to test for HIV, as a positive result could mean deportation.
People living with HIV/AIDS should have full enjoyment of their human rights, including the right to privacy, confidentiality and protection from stigma and discrimination. HIV-related travel restrictions infringe upon these and other human rights in multiple ways. The U.S. Immigration and Naturalization Service currently conducts the largest mandatory HIV-testing program in the world. Every applicant for permanent residence over the age of 15 undergoes HIV testing, and largely without informed consent. In many instances, these mandatory tests are done without appropriate pre- and post-test counseling, or safeguards of confidentiality.
The United Nations International Guidelines on HIV/AIDS and Human Rights note that:
There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status...Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travelers, are discriminatory and cannot be justified by public health concerns.
The personal impact of HIV-related travel restrictions can be devastating. The candidate immigrant, refugee, student or other traveler may simultaneously learn that he or she is infected with HIV, that he or she may not be allowed to travel, and possibly that his or her status has become known to government officials, or to family, a community, and employer, thus exposing the individual to possibly serious discrimination and stigma.
The HIV travel and immigration ban stymies HIV prevention efforts by perpetuating the myth of the HIV-infected immigrant. However, studies based on experiences of people with HIV traveling to the U.S. under current policy have shown that laws restricting entry on the basis of HIV status have not been effective in keeping people with HIV out. Instead they have been counterproductive by pushing the issue underground, as many choose to lie about their status rather than risk being turned away. The fear of being caught at the border with HIV medication in their luggage may also lead people with HIV to discontinue use of their medication while traveling. Such interruptions of treatment increase the chances of developing new or further viral mutations, which can lead to drug resistant strains of HIV, with risks of possible treatment failure. A community health survey conducted by the New York City Department of Health and Mental Hygiene (DOHMH) in 2006 found that foreign-born New Yorkers were less likely than U.S. born New Yorkers to be tested for HIV (29 percent vs. 32 percent). Foreign born New Yorkers also find out their HIV status later since they are much more likely to be dually diagnosed with HIV and AIDS than U.S. born New Yorkers (32 percent vs. 24 percent).
The restrictions also have negative economic consequences for the countries implementing them. Since 1993, the International AIDS Society (IAS), which convenes the International AIDS Conference, has refused to hold its biennial meetings in the United States. In July 2007, the its governing council adopted this additional restriction to its previous policy: "The IAS will not hold its conferences in countries that restrict short-term entry of people living with HIV/AIDS, and/or require prospective HIV-positive visitors to declare their HIV status on visa application forms or other documentation required for entry into the country." Therefore, the U.S. fails to profit from such a large gathering.
After 22 years of implementing this discriminatory policy, the United States has finally taken steps to remove its travel and immigration ban. In 2008, then President George W. Bush signed into law reauthorization of the President's Emergency Plan for AIDS Relief that included language to repeal the HIV entry ban. This action removed the statutory ban from the Immigration and Naturalization Act and opened the door for the Department of Health and Human Services (HHS) to determine whether HIV should remain on a list of "communicable diseases of public health significance." On July 2, 2009, HHS issued a long overdue proposed regulatory change to remove HIV from a list of communicable diseases for which people are barred from traveling or immigrating to the United States.
This proposed rule does not change the underlying requirements for legal entry into the United States. Instead it makes in optional for HIV-positive people to apply. If implemented, mandatory testing for HIV infection would no longer be required and HIV-positive people might be able to adjust permanent resident status as long as they meet all other conditions for admissibility. All immigrants will still be required to complete the complicated and arduous application process to change permanent legal residence.
In proposing the change, HHS maintains that "HIV/AIDS should not be considered a condition that poses a threat to public health in relation to travel because, although infectious, the virus cannot be transmitted by the mere presence of a person with HIV in a country or by casual contact."
Individuals and organizations have until Aug. 17, 2009 to submit public comments in support of the proposed regulatory change. The rule can be accessed on the CDC website. Supportive public comments will ensure the prompt implementation of the long overdue reversal of the U.S. HIV travel and immigration ban.
Read more about the public health and human rights implications of the travel and immigration ban.
Editors' note: Public comments about this regulatory change can be viewed and posted until Aug. 17.
Lyndel Urbano is the manager of government relations and Nathan Schaefer is the director of public policy at the Gay Men's Health Crisis.
People living with HIV/AIDS suffer tremendously from the stigma associated from the disease, the travel ban only adds to the stigma besides discriminating them for a disease that is not communicable from ordinary contact with other people. It is not right to add to the burden that the people living with HIV/AIDS already carry.
— Bernard Gwekwerere on 2009-07-28