Denial of Residence to HIV Positive Individual is Discrimination Under the European Convention of Human Rights

A decision of the European Court of Human Rights issued last Thursday, in Kiyutin v. Russia, finds that refusal of a residence permit to a foreign national on the basis of HIV positive status constitutes prohibited discrimination.

Violations of article 8 (right to privacy) and 14 (non-discrimination) of the European Convention on Human Rights were the basis of the decision.

The Court recalled that although there is no obligation under the Convention on a state to admit a foreign national onto its territory, ‘the State must nevertheless exercise its immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for their private or family life and the right not to be subject to discrimination’ (para. 53). This is the basis of a violation of article 8. As for discrimination, article 14 provides a list of grounds of discrimination ending in the words ‘other status’. The Court noted that it had ‘recently recognised that a physical disability and various health impairments fall within the scope of this provision’, and concluded that ‘a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14 of the Convention’. (para. 57)

Turning to whether the state could limit the right, the Court said that where ‘restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion.’ (para. 63). It said that ‘people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status’ (para. 64).

The Court cited a number of international declarations and reports on the subject. It noted that ‘travel restrictions are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and “bird flu” (H5N1). Entry restrictions relating to such conditions can help to prevent their spread by excluding travellers who may transmit these diseases by their presence in a country through casual contact or airborne particles. However, the mere presence of a HIV-positive individual in a country is not in itself a threat to public health.’ (para. 68)

The NGO Interrights participated in the proceedings and submitted an amicus curiae brief. It observes:

This landmark case is a significant boost to the rights of persons living with HIV/AIDS (‘PLHIV’) in Europe, as the judgment contains two important ‘firsts’: not only has it explicitly recognised that PLHIV are protected as a distinct group against discrimination in relation to their fundamental rights; but it has also recognised that PLHIV are a ‘vulnerable group’ and any restriction of their rights attracts a higher degree of scrutiny on the part of the Court.