The free movement of persons living with HIV/AIDS - Sida Studi

The free movement ofpersons living with HIV/AIDSJean-Yves Carlier, in association with Graciela SchiffinoEdited by Dr Lieve Fransen

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Luxembourg: Office for Official Publications of the European Communities, 1999© European Communities, 1999European CommissionDirectorate-General for DevelopmentRue de la Loi, 200B-1049 BrusselsWorld Wide Web: http://europa.eu.int/comm/dg08/eu_hiv_aids/index.htm

Order number: 451/506E

ISBN 92-828-7126-6

Ce livre est également publié en français. English translation from the French original by Michael Lomax.

The present volume is the result of a study requested by the Commission of the EuropeanCommunities (Contract nr. B7.6211/96/029). The findings, interpretations, and conclusions are those of the authors and do not necessarily reflect the views of the European Union, European Commission or EU HIV/AIDS programme in developing countries.

Reproduction is authorised, provided the source is acknowledged.

Printed in the United Kingdom

The free movement ofpersons living with HIV/AIDSProfessor Jean-Yves Carlierin association with Graciela Schiffino

Edited by Dr Lieve Fransen

‘Le choléra fini, il restera les miroirs à affronter’Jean Giono, Le Hussard sur le toit, ch. XII.

ForewordThe twentieth century will be recorded by history as an era when considerable progress was

made in the field of human development, both on political and moral levels. States have

adopted more democratic forms of government, citizens’ rights have been recognised, and

societies have developed along more compassionate and humane lines. For the last half-

century the Universal Declaration of Human Rights has extended its protection to all

human beings, regardless of an individual’s nationality, race, sex or religion, considering

them equal in dignity and rights.

The European Union has incorporated these universal rights and humanistic values

into all the treaties and basic instruments that guide its relations with third nations. These

same values also constitute the guiding principles of European Union strategies and form the

touchstone of the Union’s overall policies.

Progress in the field of science and technology has been equally remarkable this century,

leading to the improved quality and duration of life for many through the reduction of child

mortality, by the control of epidemics and the treatment of diseases, and by improving public

health and general well-being.

However, in the mid-eighties the international community realised that the inexorable

progress of the HIV/AIDS pandemic could reverse much of the progress that has been made

on these fronts. It became apparent that in the wake of persistent social and economic

inequalities in the poorest regions of the world, an additional and particularly cruel

inequality was developing. The HIV/AIDS pandemic was accentuating the development

gap, increasing disparities between nations and adding to the already heavy burden of the

least privileged.

In response, the European Union immediately launched an extensive intervention and

assistance programme for the developing countries most severely threatened by HIV/AIDS,

while at the same time facilitating the coordination of some preventive HIV/AIDS strategies

and research in its own Member States.

The European Union’s HIV/AIDS programme in developing countries not only

undertook to address basic issues of public health and well-being of societies and individuals

stricken by the HIV/AIDS pandemic, but to embrace matters concerning the legal status and

human rights of people living with HIV/AIDS. This was in response to a change triggered off

2 The free movement of persons living with HIV/AIDS – Foreword

by the pandemic in which public and private attitudes began to harden against individuals

and groups affected by the disease. Ancient beliefs, prejudices and suspicions began to re-

surface and re-establish themselves, manifesting as fear, social disapproval and ostracism.

The present study, commissioned by the European Union’s HIV/AIDS programme in

developing countries, responds to a request from the European Parliament, the EU–ACP

Joint Assembly and from European Union Member States to address the overlapping issues

of HIV/AIDS, the free movement of people and human rights in the context of our

partnership with developing countries.

The study analyses laws and rules governing the free movement within the European

Union and within third states of persons, whether tourists, travellers, refugees, immigrants,

students or professionals, in relation to HIV/AIDS.

The study examines hundreds of national and international laws, including those

of the Member States of the European Union, in an effort to pinpoint areas where action

taken in relation to the HIV/AIDS pandemic may impact on a person’s basic human rights

and freedoms.

The author points out that some laws, rules and administrative measures that limit

an individual’s rights by restraining his or her freedom of movement are ineffective strategies

to contain the spread of HIV/AIDS. Despite a great deal of convergence on many levels,

the author also argues that some laws are still in need of refinement to further the rights

of the individual.

The European Union’s strategy to confront HIV/AIDS in developing countries is

underscored by the need to face up to the pandemic without discriminating against or

compromising a person’s freedoms and rights. These same principles have guided European

Union free movement policies.

The study clarifies issues for decision-makers, to guide legislators and assist governments

in elaborating efficient and adequate policies towards HIV/AIDS.

It is hoped that in the future we will be able to look back on the European Union’s

leadership and response to the HIV/AIDS pandemic as having made a major contribution

to overall progress in the field of human rights.

Dr Lieve Fransen, MD, PhD

Principal Administrator, EU HIV/AIDS programme in developing countries

Social, Human and Cultural Development; Gender Unit VIII/A2

The free movement of persons living with HIV/AIDS – Foreword 3

4 The free movement of persons living with HIV/AIDS

The free movement of persons living with HIV/AIDS – Summary of contents 5

Summary of contents

List of abbreviations 6

Table of contents 7

General introduction 17

Part I: International and European law 21

Part II: European Union Member States (15 States) 53

Part III: Third Countries (91 States) 121

General conclusions 207

Annexes: Legislative texts and case law 221

Bibliography 312

6 The free movement of persons living with HIV/AIDS – List of abbreviations

List of abbreviationsA. AustriaAIDS Acquired Immuno-Deficiency SyndromeAm. J. Int’l L. American Journal of International LawAnn.dr. Annales de droit de LouvainB. BelgiumBGBl BundesgesetzblattBull. Quest. et Rép. Sénat Bulletin des questions et réponses du Sénat (Belgium)C.E. Conseil d’État (Belgium, France)Com. L. Yearbook Comparative Law YearbookCom.M.L.R. Common Market Law ReviewCRA Compte-rendu analytique (analytical account)D. GermanyDK. DenmarkD.P. Débats parlementaires (parliamentary debates)E. SpainEC European CommunityECHR European Convention for the Protection of Human Rights and Fundamental FreedomsECJ European Court of JusticeECR European Court ReportsEJIL European Journal of International LawF. FranceFasc. fasciculeFIN. FinlandGaz. Pal. Gazette du palais (Court Gazette, France)GR. GreeceHIV Human Immuno-Deficiency VirusI. ItalyICCPR International Covenant on Civil and Political RightsIDHL International digest of health legislationI.O.M. International Organization for MigrationIRL. IrelandJ.T.D.E. Journal des Tribunaux-droit européen (Court Gazette – European Law)L. LuxembourgL.G.D.J. Libraire générale de droit et de jurisprudenceM.B. Moniteur belgeNL. Netherlandso.c. Opus citatumOJ Official Journal of the European CommunitiesP. Portugalp. PagePNUD Programme des Nations Unies pour le DéveloppementR.A.C.E. Recueil des arrêts et avis du Conseil d’État (Belgique) (Collection of Decrees and

Opinions of the Council of State) (Belgium)Rev. belge dr. int. Revue belge de droit international (Belgian International Law)S. SwedenSida Syndrome d’immunodéficience acquiseSIS Schengen Information SystemTEU Treaty on European UnionUK. United KingdomUNDP United Nations Development ProgrammeUNHCR United Nations High Commissioner for RefugeesVIH Virus de l’immunodéficience humaineWHO World Health Organization

SourcesIn drafting the present report, in addition to journals and nationals sources, the following main sources were used:International Digest of Health Legislation (I.D.L.H.), Geneva, WHOUNHCR Refworld, Geneva, UNHCR, January 1998 (CD-ROM)

Table of contentsSummary of contents 5

List of abbreviations 6

Table of contents 7

General introduction 17

Part I: International and European lawI. Presentation 22

A. Description 22B. Main conclusions from Part I 22

II. The free movement of persons and international law: scope of the principle of non-discrimination 24A. General remarks 24B. Fundamental rights 26C. Non-discrimination 28

III. The free movement of persons and European law: scope of the limit of public health 32A. General remarks 32

1. Movement of persons 322. Public health 34

B. Access (crossing external borders and short stays) 351. Union citizens 352. Third country nationals 35

C. Travel (crossing internal borders, the right to travel) 371. Union citizens 372. Third country nationals 38

D. Residence 391. Union citizens 392. Third country nationals 45

IV. First conclusions (international and European law) 49

Part II: European Union Member StatesI. Presentation 54

A. Description 54B. Main conclusions from Part II 55

The free movement of persons living with HIV/AIDS – Table of contents 7

II. General examination of legislation in European Union Member States 57A. Entry 57

1. Union citizens 572. Third country nationals 57

B. Residence 581. Union citizens 582. Third country nationals 58

C. Expulsion 62

D. Human rights: inhuman and degrading treatment (Strasbourg) 62

E. Free movement: proportionality (Luxembourg) 66

III. Second conclusions (national laws in the union) 68

IV. Country-by-country examination of the legislation in EuropeanUnion Member States 71

Introduction 711. (A) Austria 72

1. Foreigners in general 722. Special categories 73

2. (B) Belgium 731. Foreigners in general 732. Special categories 78

3 (D) Germany 821. Foreigners in general 822. Special categories 84

4. (DK) Denmark 861. Foreigners in general 862. Special categories 88

5. (E) Spain 881. Foreigners in general 882. Special categories 91

6. (F) France 921. Foreigners in general 922. Special categories 100

7. (FIN) Finland 1011. Foreigners in general 1012. Special categories 102

8. (GR) Greece 1031. Foreigners in general 1032. Special categories 104

8 The free movement of persons living with HIV/AIDS – Table of contents

9. (I) Italy 1051. Foreigners in general 1052. Special categories 106

10. (IRL) Ireland 1071. Foreigners in general 1072. Special categories 107

11. (L) Luxembourg 1081. Foreigners in general 1082. Special categories 110

12. (NL) Netherlands 1111. Foreigners in general 1112. Special categories 112

13. (P) Portugal 1131. Foreigners in general 1132. Special categories 113

14. (S) Sweden 1141. Foreigners in general 1142. Special categories 115

15. (UK) United Kingdom 1161. Foreigners in general 1162. Special categories 120

Part III: Third countriesI. Presentation 122

A. Description 122

B. Main conclusions from Part III 122

II. General examination of legislation in third countries 124A. Entry 124

1. Public policy 1242. Public health 1243. Financial means 126

B. Residence 1271. Residence in general 1272. Particular categories 130

C. Expulsion 1311. Public policy 1312. Public health 131

III. Third conclusions (third countries’ national laws) 134


IV. Country-by-country examination of legislation in third countries 136A. Africa 136

1. South Africa 1362. Angola 1383. Botswana 1394. Burkina Faso 1395. Burundi 1406. Cameroon 1417. Ethiopia 1418. Gabon 1419. Gambia 14210. Equatorial Guinea 14311. Kenya 14312. Lesotho 14413. Madagascar 14414. Malawi 14515. Mali 14616. Namibia 14617. Nigeria 14718. Oman 14819. Uganda 14920. Rwanda 14921. Senegal 15022. Seychelles 15123. Swaziland 15224. Tanzania 15325. Tunisia 15326. Zambia 15427. Zimbabwe 154

B. Asia 15528. Cambodia 15529. China 15630. India 15831. Indonesia 15932. Malaysia 16033. Nepal 16134. Pakistan 16135. Philippines 16236. Sri Lanka 16337. Syria 163


38. Thailand 16439. Turkey 16540. Vietnam 166

C. Central and South America 16741. Argentina 16742. Bahamas 16843. Barbados 16944. Belize 16945. Bolivia 17046. Brazil 17047. Chile 17148. Colombia 17149. Costa Rica 17250. Cuba 17351. Dominican Republic 17452. Ecuador 17453. Jamaica 17554. Mexico 17555. Nicaragua 17656. Panama 17757. Peru 17758. El Salvador 17859. Trinidad and Tobago 17960. Venezuela 179

D. South Sea Islands 18061. Fiji 18062. Papua New Guinea 18063. Western Samoa 18164. Tonga 182

E. Central Europe 18365. Albania 18366. Bulgaria 18367. Hungary 18568. Poland 18569. Romania 18670. Slovakia 18771. Czech Republic 188

F. Former Yugoslavia 18972. Former Federal Socialist Republic of Yugoslavia 189


73. Croatia 18974. Macedonia 19075. Slovenia 191

G. Community of Independent States 19276. The former Union of Soviet Socialist Republics 19277. Armenia 19378. Belarus 19379. Estonia 19480. Georgia 19481. Kazakhstan 19682. Kyrghyzistan 19783. Latvia 19784. Lithuania 19885. Moldova 19986. Mongolia 20087. Uzbekistan 20088. Russia 20189. Tajikistan 20290. Turkmenistan 20391. Ukraine 204

General conclusions1. The Main Facts 208

A. National law 208B. European law 210C. International law 210

2. Conclusions 2163. Proposals 217

Annexes: Legislative texts and case lawAnnexe I. International and European law 222

(1) International protection of human rights 222(2) Secondary community legislation (EC) 223(3) Non-binding community texts 224

Annexe II. European Union Member States 230(1) National texts 231

1. (A) Austria 2312. (B) Belgium 2313. (D) Germany 2324. (DK) Denmark 233


5. (E) Spain 2336. (F) France 2367. (FIN) Finland 2388. (GR) Greece 2389. (I) Italy 24010. (IRL) Ireland 24011. (L) Luxembourg 24212. (NL) Netherlands 24413. (P) Portugal 24514. (S) Sweden 24615. (UK) United Kingdom 246

(2) Case law: European Court of Human Rights, 2 May 1997, D. v. United Kingdom 249(3) Summary table 274

Annexe III. Third countries 276(1) National texts 276

A. Africa 2761. South Africa 2762. Angola 2763. Botswana 2774. Burkina Faso 2775. Burundi 2777. Ethiopia 2789. Gambia 27810. Equatorial Guinea 27811. Kenya 27912. Lesotho 27913. Madagascar 28014. Malawi 28016. Namibia 28117. Nigeria 28118. Oman 28119. Uganda 28120. Rwanda 28221. Senegal 28222. Seychelles 28223. Swaziland 28324. Tanzania 28325. Tunisia 28326. Zambia 28427. Zimbabwe 284


B. Asia 28428. Cambodia 28429. China 28530. India 28531. Indonesia 28632. Malaysia 28633. Nepal 28634. Pakistan 28635. Philippines 28736. Sri Lanka 28737. Syria 28738. Thailand 28839. Turkey 28840. Vietnam 288

C. Central and South America 28941. Argentina 28942. Bahamas 29043. Barbados 29044. Belize 29045. Bolivia 29147. Chile 29148. Colombia 29149. Costa Rica 29250. Cuba 29251. Dominican Republic 29252. Ecuador 29253. Jamaica 29354. Mexico 29355. Nicaragua 29456. Panama 29458. El Salvador 29559. Trinidad and Tobago 295

D. South Sea Islands 29562. Papua New Guinea 29563. Western Samoa 29664. Tonga 296

E. Central Europe 29765. Albania 29766. Bulgaria 297


67. Hungary 29768. Poland 29870–71. Czech Republic and Slovakia 298

F. Former Yugoslavia 29973. Croatia 29974. Macedonia 30075. Slovenia 300

G. Community of Independent States 30078. Belarus 30079. Estonia 30180. Georgia 30181. Kazakhstan 30282. Kyrghyzistan 30283. Latvia 30284. Lithuania 30385. Moldova 30386. Mongolia 30487. Uzbekistan 30588. Russia 30589. Tajikistan 30690. Turkmenistan 30691. Ukraine 306

(2) Summary Table 307

Annexe IV. Basic bibliography 312(1) On AIDS 312(2) On free movement of persons, migrations and human rights 317


Generalintroduction

The free movement of persons living with HIV/AIDS– General introduction 19

General introduction1. The study concerns the movement of persons living with HIV/AIDS. It falls within

the context of relationships between developing countries and European Union Member

States 1. Although this study develops general principles, the examination is mainly

concerned with persons circulating between the European Union and developing

countries, as well as within those specific areas.

2. The issue involved in the free movement of persons with respect to HIV/AIDS is the

following: should measures be taken with regard to international travellers and migrants?

Before assessing legislation or national practices, it is necessary to determine what

restrictions on the free movement of persons are authorised or forbidden by international

and European law. This is the subject of the first part of the study. The second part of the

study examines the legislation of the various European Union Member States. The third

part of the study concerns other countries that are not members of the European Union

(third countries). The third countries examined by this study are principally developing

countries concerning which it was possible to collect legislative or reglementary

information (a total of 64 countries). Countries with which the Union has relations of

cooperation or of association, or for which this kind of relation is envisaged in the future,

principally in the Central and Eastern Europe countries (CEEC), are also studied insofar

as it has been possible to collect legislative or reglementary information concerning them

(27 countries).

A total amount of 106 states were included in the study.

The study was conducted in 1997. When it was possible, updating was added for

1998. Examination of these laws and practices allows us to summarise the facts in general

conclusions and to make suggestions (§§ 539 et seq.). These are centred on the necessary

respect of the principle of proportionality between the objective pursued, which is

combating the AIDS pandemic, and the means employed. Where these means affect

fundamental human rights such as freedom of movement, they must be replaced, as much

as possible, by other efficient means of combating AIDS.

1 The European Commission also implemented a ‘Europe against AIDS’ plan of action, COM(95) 521 final, 7November 1995. See also the communication ‘for increased solidarity to confront AIDS in developingcountries’, COM(98)407 final, 3 July 1998.

International andEuropean law

Part 1

22 The free movement of persons living with HIV/AIDS – Part 1: International and European law

I PresentationA. Description3. This first part concerns international and European data. It analyses international law

and the texts which, in the context of Community and governmental cooperation

(between the fifteen or a limited number of Union countries), directly or indirectly affect

the movement of persons with HIV/AIDS, and in particular the entry into the Union of

people from developing countries.

4. After briefly considering international law on the free movement of persons (II), we

shall successively examine under European law (III) the issues of (B) access to the

territory, (C) travel and (D) residence for people with HIV/AIDS before coming to first

conclusions (IV).

B. Main conclusions from Part I5. The concept of movement includes three elements: entry into European Union

territory, travel within the Union and residence on the territory of Union Member States.

6. A priori, there is no justification for a distinction between travel (tourism, business,

etc.) and migration (work, study, asylum, etc.) with respect to protection against AIDS.

Migrants who set up residence and are joined by their families will often have less ‘at risk’

sexual relations than an occasional traveller on holiday or on a business trip.

Therefore, every time people cross borders, for whatever reason, there is a question of

principle that must be answered: is it necessary to restrict or prohibit people carrying

HIV/AIDS from crossing borders?

7. Neither international nor European law contains an absolute obligation ‘prohibiting

prohibition’. As a result, measures restricting the free movement of persons carrying

HIV/AIDS, insofar as they are expressly stipulated by a legal text, are not as such in

absolute contradiction with either international or European law.

8. Nevertheless, indirectly, in their effects, measures restricting the free movement of

persons carrying HIV/AIDS or likely to do so, may under international law contravene

the principle of non-discrimination along with other fundamental rights (protection of

The free movement of persons living with HIV/AIDS – Part 1: International and European law 23

privacy and family life, prohibition of inhuman and degrading treatment) and, under

European law, the principle of the free movement of persons.

9. Under European law, the dominant fact is that, to date, no restrictive text has been

issued stating that AIDS or HIV-positivity justify exceptions to the free movement of

persons. On the contrary, conclusions, resolutions and communications stress that free

movement should be guaranteed for persons living with HIV/AIDS. Since no text

permits controls, such controls should at present be ruled out.


II The free movement of persons andinternational law: scope of the principleof non-discriminationA. General remarks10. The movement of persons may be sub-divided into short-term travel covering a

journey with a short stay for tourism or business reasons, and medium- or long-term

residence including migration for reasons of work, study or asylum. Although it appears to

be legally possible to make a distinction between the right to travel and the right to

migrate, the former being broader and more open than the latter, such a distinction is

avoided in this report for two reasons. The first reason is linked to the subject of the

study, people carrying HIV/AIDS. Given the way in which the virus is transmitted, the

duration of a trip, journey or migration has no significant impact. Where countries take

measures to permit only access to their territory to people not carrying HIV/AIDS and

limit such measures to migrations rather than short stay travel, it is not based on a

concern for public health and the dangers of an epidemic, but on economic grounds to

limit migration in general, particularly limiting migrants that might place a burden on

the social security system due to the health care to which they will be entitled. Indeed,

with regard to the risk of an epidemic, risk behaviour is probably more pronounced

amongst tourists – including sexual tourism – and business travellers than amongst long-

term migrants setting up with their families or creating families within the country.

11. The second reason that justifies making no distinction in the present study between

the right to travel and the right to migrate is that neither of these two rights exists

absolutely under international law. At the present time there is no international law

giving the right to freedom of movement, in the general sense of freedom to cross borders.

However, it should be noted that international law contains a remarkable paradox on this

point which results from the cold war, during which the main texts for the protection of

fundamental rights were drafted. International law recognises the right to cross a border,

but in one direction only – leaving a territory, but not entering another one 2. Even

though logically the world is divided into states and it does not seem possible to leave one


country without entering the territory of another 3, such is the case under international

law: each country is sovereign in determining the conditions of access to its territory.

Visas to leave a territory have therefore been eliminated in almost all countries, but entry

visas have been retained. In principle, each state determines the conditions for issuing a

visa for access to its territory. However, a common standard visa and a common list of

third countries whose nationals need a visa to enter the European Union has become,

since the Treaty of Maastricht, a European competence (article 100C E.C.; infra, § 27).

Would it be possible for a state to make proof that the traveller is not carrying HIV/AIDS

one of the required conditions for public health reasons? Is such a condition legally

possible and does it happen in practice? This is the subject of the present study.

12. The issue of the free movement of persons with regard to epidemics was raised in the

middle of the 19th century at international conferences, the first of which took place in

Paris in 1851 with a view to combating cholera, plague and yellow fever epidemics 4.

Subsequently, in a health convention in 1903, signatory states agreed to reject excessive

and arbitrary controls at borders 5. In 1951 the World Health Organization (WHO) drew

up international regulations stipulating quarantine measures that countries could employ

to combat cholera, plague, yellow fever and smallpox, setting out restrictions that could

be applied to international traffic to control other diseases. The aim was to ensure

maximum security against diseases but cause the least possible inconvenience to

international traffic. There was no provision for issuing certificates guaranteeing that a

person did not carry a certain disease 6.

2 International Covenant on Civil and Political Rights (CCPR) article 12.2: ‘Everyone shall be free to leave anycountry, including his own’. The same text appears in Protocol 4, article 2 of the European Convention onHuman Rights (ECHR). Note that this right to leave is not absolute since it may be ‘subject to any restrictions... provided by law [that are] necessary to protect national security, public order, public health or morals ...’.

3 This nonsense is illustrated by a movie by the Greek Angelopoulos, Le pas suspendu de la cigogne, the stork is amigratory bird and the suspended step is a step over the border line.

4 A. HENDRIKS, ‘The right to freedom of movement and the (un)lawfulness of AIDS/HIV specific travelrestrictions from a European perspective’, Nordic journal of international law, 1990, p. 189; L.J. NELSON,‘International travel restrictions and the AIDS epidemic’, American journal of international law, 1987, p. 233.

5 A. HENDRIKS, o.c., p. 190-191.6 L.J. NELSON, o.c., p. 234; A. HENDRIKS, o.c., p. 191.


Countries come up against two limitations on the conditions for issuing

authorisation to enter their territories: firstly, the limitations of fundamental rights

underpinned by the principle of non-discrimination (see below §§ 14 et seq., §§ 16 et

seq.) and secondly the limitations of international agreements with other states,

particularly in the case of Europe (see below §§ 20 et seq.).

B. Fundamental rights13. Although under international law freedom of movement is not a recognised

fundamental right for all, the limits to freedom of movement may nevertheless not affect

other fundamental individual rights recognised under international law. This is the crux

of the issue which requires a balance to be found between the interests involved. On the

one hand we have the interests of the state which enable it to restrict access to its

territory. This interest is further reinforced by an obligation on countries to take ‘the

necessary steps for ... the prevention, treatment and control of epidemic diseases’ 7. On

the other hand, we have the interests of the individual, some of whose fundamental rights

may be violated by the application of compulsory testing or a requirement to prove that

one is not a carrier of HIV/AIDS. The major fundamental rights concerned are respect

for privacy and family life 8 and the prohibition of inhuman and degrading treatment 9.

On the subject of an indirect test for HIV, the European Court of Justice judged that since

such a test was carried out against the wishes of the person concerned, it was a violation

of his privacy 10. This reasoning could be applied to a test imposed when crossing borders.

Certainly, the decision does not expressly forbid the refusal to recruit an individual who

declines to submit to a test, but reminds that this concerns only a test ‘that the medical

officer considers necessary in order to evaluate his suitability for the post for which he has

applied’, and in so doing the Court recalls the general principle of proportionality

according to which ‘restrictions may be applied to fundamental rights 11, provided that

7 International Covenant on Economic, Social and Cultural Rights, article 12, 2, c.8 ICCPR, article 17; ECHR, article 8.9 ICCPR, article 7; ECHR, article 3.10 ECJ, 5 October 1994, X v. Commission of the E.C., C-404/92, ECR, 1994, I-4737.11 In fact, it would be better to write ‘to certain fundamental rights’ such as, in this case, the protection of privacy

and family life, since others, such as the prohibition of inhuman and degrading treatment, are subject toabsolute and unconditional protection.


they in fact correspond to objectives of general public interest and do not constitute, with

regard to the objectives pursued, a disproportionate and intolerable interference which

infringes upon the very substance of the right protected’. The example is all the more

remarkable because in this case it is the European Court of Justice (Luxembourg) and not

the European Court of Human Rights (Strasbourg) which came out against an HIV test

on recruitment of a European official, basing its decision on article 8 of the European

Convention on Human Rights. This means that such protection of fundamental rights by

the European Convention on Human Rights has been added to the other protections

based on the principle of free movement of persons in the broader sense, even in the

Community body of law (see below §§ 20 et seq.) 12.

14. It remains that the balance between the interests of the state and those of the

individual would be difficult to establish within the framework of measures limiting the

free movement of persons because of HIV/AIDS. It would probably be necessary to stress

that the public interest and the protection of public health, which countries put forward

to justify measures restricting the free movement of persons, are not properly safeguarded

and that, on the contrary, measures such as compulsory screening are counter-productive

and exclude people carrying HIV/AIDS from health care systems and possible frameworks

for dealing with them. This has been declared on several occasions in resolutions and

recommendations from international organisations such as the World Health

Organization and the World Health Assembly, as well as regional organisations such as

the Council of Europe and the constitutions of the Member States of the European Union.

15. As one example from the many texts, let us take Recommendation no. R (89)14 of 24

October 1989 by the Ministerial Committee of the Council of Europe on the ethical

implications of HIV infection in its health and social aspects, in which points 29 and 33 declare

that routine compulsory screening is ‘unethical, ineffective, fails to respect privacy, is

discriminatory and ultimately harmful’. Points 46 to 48 of the same text read as follows:

12 Which is in line with articles F2 and K2 of the Treaty on European Union (TEU - Maastricht) restating thatthe Union respects fundamental rights, article 6 of the TEU, consolidated (Amsterdam).


‘46. It is recommended that public health authorities should:

47. Refrain from introducing restrictions on freedom of movement by means

of costly and ineffective border controls for all categories of travellers,

including migrant workers;

48. Not employ coercive measures such as quarantine and isolation for

individuals infected with HIV or patients with AIDS.’

The reasons given in explanation of the Recommendation stress that ‘a conflict between

individual and collective interests could arise in the choice of methods used to detect

HIV infection’ and that ‘in compliance with the principles prescribed in this

Recommendation, the decision on whether or not to proceed with a test is, in the last

resort, the responsibility of the individual and not of society’ (points 155 and 156).

Although it is the responsibility of doctors and medical experts to decide whether

such measures are ineffective, or even harmful 13, examining here whether or not they

conform with the principle of non-discrimination is a matter for legal experts.

C. Non-discrimination16. Jurisprudence of the European Court of Human Rights, followed by national

jurisprudence, stipulates that differential treatment for two categories of persons is not

discriminatory if it is based on objective criteria and is proportional, that is to say there is

proportionality between the objective pursued and the means employed 14. Once again we

see that the question of proportionality is central and that it involves a balancing test

13 Report of the Secretary General of the United Nations for the 51st session (1995) on international andnational measures taken to protect human rights and to prevent discrimination with regard to HIV/AIDS: the‘WHO has stated that since HIV infection is already in every region and virtually every major city in theworld, even total exclusion of all travellers (foreigners and citizens travelling abroad) cannot prevent theintroduction and spread of HIV’. E. LAWSON, Encyclopedia of Human Rights, Washington, Taylor & Francis,2nd edition, 1996, p. 33.

14 The principle of non-discrimination is covered by article 14 of the ECHR and articles 2 and 26 of the ICCPR.The latter article is the broadest in that it affirms not only the principle of non-discrimination as beingsubsidiary to the fundamental rights referred to in the text, such as article 14 of the ECHR, but in general, theequality of every person ‘before the law’.


between the objective pursued (combating AIDS) and the effectiveness of the means

employed, that being compulsory screening prior to access to the territory. Effectiveness

has to be judged both from an objective point of view (medical studies, statistics) and

from a subjective point of view with regard to the infringement of democratic values.

However, such examinations are not precisely the same. The threshold at which

fundamental individual rights are violated is in effect lowered. On the other hand,

protection of such rights is increased. It may happen that treatment that is not in itself

judged to conflict with a fundamental right, such as protection of privacy and family life

or the prohibition of inhuman or degrading treatment, could become so where it is

directed only at one category of people, even if this category could be ‘objectively’

distinguished from another, and the means employed, because of the fact that it is

aimed solely at this category of people, would not necessarily be proportional to the

objective pursued.

17. Where freedom of movement of persons living with HIV/AIDS is concerned,

‘objective’ criteria are used as a basis for differential treatment.

The first criterion for differential treatment is nationality.

Although foreigners do not have a right to access to a territory, nationals do. ‘No one

shall be arbitrarily deprived of the right to enter his own country’ 15. As a result,

international law prohibits depriving a national of the right to enter his country because

he is an HIV carrier. This does not expressly state that screening is forbidden. However,

testing carried out only on nationals who travel and not on those who remain in the

country could be considered as discriminatory because the objective factor on which it is

based, travel, is a poor reason for justifying such major differences in means with regard to

the objective of public health. Nationality is also used as a basis for differentiating

between certain categories of foreigners. By virtue of international treaties, certain

foreigners benefit from a right to enter a territory without prior authorisation (visa). This

15 ICCPR, article 12.4 and the almost identical ECHR, Protocol no. 4, article 3.2. The ECHR does not use thesame adverb ‘arbitrarily’ which could allow certain exceptions. It does give an unconditional right to nationals.Conversely, the Convention is broader in scope when it speaks of ‘his own country’ which does not necessarilylimit it strictly to nationals.


is the case for refugees by virtue of the principle of non-refoulement which is extended to

asylum seekers 16. It is also the case for citizens of the European Union and members of

their families on the territory of all Member States (see below §§ 20 et seq.).

The second criterion for differential treatment is HIV/AIDS.

On whom can one impose a test followed by refusal of access to the territory?

18. The combination of the two criteria – nationality and AIDS – becomes complex. In

the case of nationality, either the test is imposed on everyone, despite the consequence of

not being able to deny access to the territory to nationals and certain privileged

categories of foreigners; or the test is only imposed on certain categories of foreigners to

whom the objective case of public health does not seem to be pursued by an appropriate

means: a migrant setting up with his family probably represents a lesser risk than a

national returning from a sex tourism trip. The measure is not proportionate and

therefore violates the principle of non-discrimination.

In the case of AIDS, either the test is imposed on everyone or on all persons of a

certain nationality, depending on the choice for the first criterion, or the test is only

imposed on groups deemed to be ‘at risk’ (homosexuals, drug addicts). In the second case,

the criterion for differential treatment cannot be judged to be objective in that it is based

solely on the private lives of those concerned. In the first case, the test could be envisaged

if it were imposed on everyone, regardless of nationality, given the remarks made

concerning this criterion. If a measure to refuse access to the territory results from a test,

AIDS becomes the ‘objective’ criterion for differential treatment. The principle of

proportionality is then based on whether the refusal of access to the territory (the means

employed) is proportional to the objective pursued (to combat AIDS).

19. The same question of proportionality with regard to fundamental rights (B) reappears.

This is bolstered by the obstacles that it has to overcome to avoid infringing the principle

of non-discrimination (C). More generally, the criterion of nationality and, to an even

greater extent, the criterion of AIDS, are not necessarily ‘objective’ criteria for

differential treatment because, even if they are objectively identifiable, trends in

fundamental rights will tend to consider that they no longer constitute an objective basis

for differential treatment as was once the case for trends in discrimination on grounds of

16 Geneva Convention of 28 July 1951 relating to the status of refugee, article 33. This article does not providefor any exception on the grounds of public health, only for ‘national security’.


race or gender, which were also regarded as objective criteria.

Whatever comes about, in the current situation of protection of fundamental rights,

although the imposition of limits on the free movement of persons because of HIV/AIDS

is not expressly forbidden, it remains that implementing such restrictions is difficult to

reconcile with the principle of non-discrimination. Finally, such restrictions certainly

could only be implemented by virtue of a law in the broad sense, that is to say a legal text

brought to the knowledge of the general public, justifying the legitimate goal pursued 17.

17 Article 8 of the ECHR stipulates that intrusion into private or family life must be covered by a law. Moreover,article 6 of the Convention of 28 January 1981 of the Council of Europe for the Protection of Individuals withregard to Automatic Processing of Personal Data, stipulates that ‘personal data concerning health or sexualactivities may not be automatically processed unless internal laws provide appropriate guarantees’.


III The free movement of persons and European law: scope of the limit of public healthA. General remarks20. The protection of fundamental rights analysed above (II) is also provided for under

Community law. In the case of the free movement of persons – in the broad sense of

freedom to move, not in the strict Community sense of the right of residence –

Community law includes provisions beyond those promoting freedom of movement based

on an extension of the initial concept of the free movement of workers. The two

protections – of fundamental rights and freedom of movement – are sometimes combined.

In 1975 the ECJ judged restrictions on the free movement of workers by a state for

reasons of public policy to contravene articles 8 and 11 of the ECHR and article 2 of

Protocol no. 4 (the right within the territory of a state to liberty of movement and

freedom to choose his residence) 18. Restrictions on the grounds of public health could be

subject to the same type of condemnation.

21. Given the substantial evolution of Community law, we need to recall some of the

issues concerning (1) the free movement of persons and (2) public health before

examining in detail the conditions of (B) access, (C) travel and (D) residence within the

Union with respect to public health.

1. Movement of personsEach component of the concept of movement (entry, travel, residence) may be examined

making a distinction between Union nationals and nationals of third countries.

22. For entry, that is to say crossing external borders, Union nationals are subject only to

a visual control 19. For nationals of other countries, there is a common European visa

policy, whilst the rest of the migration policy is covered by intergovernmental

18 ECJ, 28 October 1975, Rutili, C-36/75, ECR, p. 1219.19 ECJ, 27 April 1989, Commission v. Belgium, C-321/87, ECR, p. 997.


cooperation. Within this framework, a draft agreement on crossing external borders was

presented by the Commission on 10 December 1993 20. All those questions entered into

European Community law with the ratification of the Treaty of Amsterdam signed on 2

October 1997. The new consolidated version of the EC Treaty would have a new Title IV:

‘Visas, asylum, immigration and other policies related to free movement of persons’.

As for travel, that is to say crossing internal borders, all controls must be eliminated

both for nationals of third countries and for Union nationals. In fact it is impossible to

control third country nationals without also controlling Union nationals. The

elimination of internal border controls would lose any useful effect unless it was applied

to everyone, regardless of nationality. The Convention implementing the Schengen

agreements nevertheless stipulates that a non-citizen of the Union must make a

declaration (article 22) 20b.

23. The right of residence for European nationals, known technically as ‘free movement of

workers’ and ‘establishment’ for self-employed workers, is based on articles 48 and 52 of

the Treaty of Rome. These articles enshrine three main principles: the rule of treatment

equal to that of a national, free access to the territory and the right of residence, as well as

the right to exercise a professional activity in any Member State. As free movement

constitutes a fundamental principle, secondary legislation can only promote this principle 21;

exceptions must be interpreted restrictively 22. The principle of free movement has been

extended to job seekers (article 48-3), students (Directive 93/96), graduates (Kraus case 23),

retired people (Directive 90/365) and the unemployed (article 7 of Directive 68/360).

Freedom of movement is, however, subject to certain limitations, including the

20 COM(93) 684. This draft contains, with some differences, a text signed in Brussels on 20 June 1991.20b The Amsterdam Treaty confirms the progressive implementation of an ‘area of freedom, security and justice’ (new

Title IV, article 61, consolidated EC Treaty) in which, among others, ‘the absence of any control on persons, bethey citizens of the Union or nationals of third countries, when crossing internal borders’ (article 62,1) isguaranteed. It is noted that the protocols annexed to the Treaty allow three countries to remain outside thiscommon space: the United Kingdom, Ireland and Denmark.

21 ECJ, 5 March 1991, Giagounidis, C-376/89, ECR, p. 1069; ECJ, 23 February 1994, Scholz, C-419/92, ECR, p. 505.22 ECJ, 13 July 1983, Forcheri, C-152/82, ECR, p. 2323; ECJ, 3 July 1986, Kempf, C-139/85, ECR, p. 1741; ECJ, 26

February 1991, Antonissen, C-292/89, ECR, p. 745.23 ECJ, 31 March 1993, Kraus, C-19/92, ECR, p. 1663.


reservation of public policy, public safety and public health (article 48-3). The right of

residence for third country nationals is based on the following elements: family reunion,

agreements between the Community and third countries, refugee status or favor of

residence as a worker. The last two fall under the responsibility of the Member States.

2. Public health24. What about public health within the Union? Article 3 (o) of the EC Treaty stipulates

that Community action must contribute to the attainment of a high level of health

protection. Article 129 (under Title X ‘Public Health’) stipulates that the Community

shall contribute towards ensuring a high level of human health protection by encouraging

cooperation between the Member States and, if necessary, lending support to their action.

The Community’s action is limited to coordinating national policies, the adoption of

encouraging measures by decisions from the Parliament or the Council, and the adoption

of recommendations by the Council. Harmonisation of Member States’ laws falls outside

the remit of the Council. Health protection policy has frequently been developed in line

with other Community policies (consumer protection, environmental protection, etc.),

but in the case of combating AIDS it is independent because the resolutions taken by the

Council only concern public health 24.

In one of its judgements which concerns the free movement of goods, but which could

be transposed to the free movement of persons, the Court deemed that restrictions on free

movement were only legitimate where they were necessary for safeguarding public health 25.

24 L. DUBOUIS, ‘L’Europe de la santé’, Ann. Dr., 1993, p. 163. article 129 E.C., amended by the Treaty ofAmsterdam (new article 152 of the consolidated version) make clear that the community action shallcomplement national policies.

25 ECJ, 20 February 1979, Rewe Zentral A.G., case 120/78, ECR, p. 6490. article 36 EC reads as follows:‘The provisions of articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goodsin transit justified on grounds of public morality, public policy, public security, the protection of health andlife of humans, animals or plants; the protection of national treasures possessing artistic, historic orarchaeological value; or the protection of industrial and commercial property. Such prohibitions orrestrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction ontrade between Member States.’


25. Generally speaking, it can be stated that restrictions on freedom of movement in

the territory of the Union, which are based on AIDS and the protection of public health,

are possible for access to the territory of the Union, that is to say crossing external

borders, and impossible for travel within the Union, that is to say crossing internal

borders, and that they would be difficult to envisage for residence within the Union,

except for nationals of third countries which then involves the first hypothesis of access

to common territory.

B. Access (crossing external borders and short stays)1. Union citizens26. Union citizens are subject only to visual control on entry. This principle, stated in a

judgement from the Court on 27 April 1989 26, is found in article 5-1 of the draft

agreement on crossing external borders. This principle is already in force for the external

borders of the Schengen area (Benelux, France, Germany, Spain, Portugal, Italy, Austria,

Greece) by virtue of article 6 of the convention implementing the Schengen agreements.

2. Third country nationals27. A common European policy exists on visas (article 100 C of the EC Treaty). The

Council adopted a regulation setting out the third countries whose nationals should carry

a visa on entry to the Union 27. Furthermore, the Council has proposed a regulation

establishing a standard visa 28. However, each country remains responsible for deciding

the conditions for issuing visas. Article 100 C-5 is worded as follows: ‘This article shall be

without prejudice to the exercise of the responsibilities incumbent upon the Member

States with regard to the maintenance of public policy and the safeguarding of internal

security’. One might question whether the fact of being infected with HIV/AIDS could

justify refusal of a visa on grounds of public policy. If necessary, the question could be put

to the Court. The absence of any reference to public health, in addition to public policy

and internal security, could make it possible to maintain that AIDS cannot in itself

provide grounds for refusing to issue a visa.

26 ECJ, 27 April 1989, Commission v. Belgium, C-321/87, ECR, p. 997.27 Regulation 2317/95, OJ, L 234, p. 1; its contents were maintained in spite of its cancellation by ECJ, 10 June

1997, European Parliament v. Council, C-392/95, ECR, 1997, I-3213.28 Regulation 1683/95, OJ, L 164, p. 1.


28. The draft agreement on crossing external borders stipulates that external borders must

be crossed at transit points and that nationals of third countries are subject to a thorough

control. According to the draft (article 7), nationals of third countries can obtain

authorisation to enter for a short stay under certain conditions, including the absence of a

threat to ‘public policy’ and ‘national security’. As for the common visa policy, the

question arises of whether HIV/AIDS could be considered to be a threat to public policy

resulting in a refusal of entry. As the new draft stipulates that the Court is competent by

virtue of article K3 (last sub-paragraph) of the Treaty, it could be required to decide on

the content of the reservation on public policy. Another condition is not to appear on a

common list. The fact that a person is carrying HIV/AIDS would not, in principle, justify

inclusion in this list given the stipulation contained in article 6 of the Convention of the

Council of Europe for the Protection of Individuals with Regard to Automatic Processing of

Personal Data 29. Nationals of third countries may also be refused entry ‘under all

circumstances in which a national of a Member State of the European Communities

could be refused entry into a Member State in compliance with Directive 64/221’ (article

7 of the draft). Directive 64/221 contains provisions concerning entry into the territory

taken by Member States for reasons of law and order, public security and public health. In

the field of public health, the only diseases that may be used to justify refusal of entry are

those figuring in the attached list. This list does not expressly mention AIDS (see § 36,

infra). If a question were brought before it concerning the interpretation of the directive,

the Court would base its reply on jurisprudence developed on the subject of Community

nationals. However, the Court has never pronounced on the reservation of public health

with respect to AIDS or HIV-positivity. Conversely, there is a large body of case law

concerning public policy, which the Court has made restrictive in character 30.

29. In the Convention implementing the Schengen agreements, third country nationals

are subject to a thorough control at external borders including seeking out and

preventing threats to ‘national security’ and ‘public policy’ (article 6). Could HIV/AIDS,

if it were deemed to be a threat to public policy, result in refusal to allow crossing of an

external border? The concepts of ‘public policy’ and ‘national security’, as conditions for

29 See above, footnote 17.30 ECJ, 26 February 1975, Bonsignore, 67/74, ECR, p. 297; ECJ, 8 April 1976, Royer, 48/75, ECR, 1976, p. 497.


the right of residence for a period of less than three months, are found in article 5, which

nevertheless stipulates that even if the required conditions are not fulfilled, countries may

grant the right to entry on ‘humanitarian grounds’. Finally, on the subject of the

Schengen information system, article 94 stipulates that data listed in the first sentence of

article 6 of the Convention of the Council of Europe of 28 January 1981 for the Protection

of Individuals with Regard to Automatic Processing of Personal Data, are not authorised. The

existence of AIDS or HIV-positivity do not form part of the authorised data since the

Convention of 28 January 1981 expressly mentions in article 6 ‘personal data concerning

health or sexual activities’.

29b. The Treaty of Amsterdam introduces these questions in Community law in a new

Title 30b and by a Protocol integrating the Schengen acquis into the framework of the

European Union. This integration, however, contains two important limitations.

Quantitatively, it does not concern the United Kingdom, Ireland and Denmark.

Qualitatively, it ‘shall not affect the exercise of responsibilities incumbent upon Member

States with regard to the maintenance of law and order and the safeguarding of internal

security’ (article 64, consolidated version). Therefore, the ECJ would become competent,

but could not decide on any measure or decision relating to the maintenance of law and

order and the safeguarding of internal security. This leaves open the question of public

health, which is not precisely affected. It would therefore be possible that the ECJ declare

itself competent for interpretation of controls or tests at the internal borders for reasons of

public health (see also infra, § 32b).

C. Travel (crossing internal borders, the right to travel)1. Union citizens30. Article 7A of the EC Treaty provides for the creation on 1 January 1993 of a single

market comprised of an area without internal frontiers in which the free movement of

persons is ensured. The position of the Commission, contrary to that of the states, is to

interpret article 7A as an obligation to ensure results that eliminate all internal border

controls as from 1 January 1993 31. In 1995 the Commission proposed a directive on the

30b Title IV: Visas, asylum, immigration and other policies related to free movement of persons. This title implements anarea of freedom, security and justice.

31 Communication from the Commission to the Council and the Parliament on the ‘abolition of border controls’,Brussels, 8 May 1992, SEC (92)877.


elimination of controls on people at internal borders 32. For European citizens, article 7A

is today reinforced by article 8A, introduced by the Maastricht Treaty.

31. By virtue of article 2-1 of the Convention implementing the Schengen agreement,

internal borders may be crossed at any point without controls. Article 2-2 however

envisages the possibility of re-establishing controls if required for reasons of ‘public policy’

or ‘national security’. Could AIDS or HIV-positivity be used to justify the application of

article 2-2 if they were classified as threats to ‘public policy’? The absence of any mention

of an exception based on public health and the restrictive interpretation of the concept

of public policy by the Court lead us to reply negatively.

2. Third country nationals32. The Commission considers that ‘any interpretation of article 8A (now 7A) which

might lead to limiting the effects solely to Community nationals would deprive this

provision of any useful effect’ 33. It would not then be possible to eliminate internal border

controls for the sole benefit of Community nationals. Accordingly on 24 August 1995 the

Commission proposed a directive concerning the right of nationals from third countries

to travel within the Community 34. This draft directive invited Member States to grant

nationals of third countries the right to travel, that is to say to cross internal Union

borders and reside for a maximum of three months in another Union country provided

that they hold a residence permit for a Member State and adequate means of subsistence.

An exception is made where a national of a third country ‘constitutes a threat to the

public policy, public security or international relations of the country’. Once again, no

exception is made on grounds of public health.

The same reasoning is applied with regard to the convention implementing the

Schengen agreements, which nevertheless contains certain specific provisions. Article 22

of the convention stipulates an obligation of declaration, whilst articles 19 to 21, which

concern the movement of third country nationals, make this subordinate to fulfilment of

the condition in article 5 (e) – the absence of a threat to public policy and national

security. The question of whether people living with HIV/AIDS could have their

movements limited in the name of public policy must, for the reasons given, be answered

32 COM(95) 347 final. See also about travel, Directive 64/221, infra, paragraph 35 about residence.33 Communication from the Commission to the Council and the Parliament on the ‘abolition of border controls’, o.c.34 COM(95) 346 final, OJ, C 306, 17 November 1995, p. 5.


negatively. Whilst the criterion of nationality can no longer be used to justify internal

border controls that have been eliminated for everyone, the construction of a single

internal market characterised by freedom for everyone to travel cannot be called in

question by introducing AIDS as a new criterion to replace nationality.

32b. The Treaty of Amsterdam, ratifying the states’ positions, postpones the obligation to

reach the absence of all controls, for all persons, at the internal borders, to five years after

its coming into force. The quantitative (United Kingdom, Ireland, Denmark) and

qualitative (public policy, internal security) limits already mentioned are also applicable

to the suppression of controls at the internal borders (supra, § 29b).

The exact possibility of control by the Court in these matters is not clear. New article

68 par. 2 EC in the consolidated version, states that ‘the Court of Justice shall not have

jurisdiction to rule on any measure or decision … relating to the maintenance of law and

order and the safeguarding of internal security’ in the crossing of the internal borders. Some

Commission representatives argue that this limitation of the competence of the Court would

only concern general decisions taken by a Member State in order to reinstore controls at the

internal borders, and not particular decisions in individual cases of violation of public policy.

Even so, a general measure of controls at the internal borders justified by public policy to

fight against AIDS could escape the control of the Court of Justice unless one considers that

a question of public health, that is not expressly mentioned in the Treaty, could not be

included in the concept of public policy. In this interpretation, we believe that the Court of

Justice would be competent.

D. Residence1. Union citizens33. Residence for Union citizens within the Union recognized to each Union citizen by

article 8A EC introduced by the Treaty of Maastricht is governed by articles 48 (workers),

52 (establishment) and 59 (provision of services) of the Treaty and by secondary legislation,

in particular Directive 68/360 of 15 October 1968 on the abolition of restrictions on movement

and residence within the Community for workers of Member States and their families 35. Article 10

35 OJ, L 257, 19 October 1968, p. 3. See for establishment and provision of services, Directive 73/148, Council,21 May 1973, on the abolition of restrictions on movement and residence within the community for nationals ofMember States with regard to establishment and the provision of services, OJ, L 172, 28 June 1973, p. 14. Article 8 issimilar to article 10 in Directive 68/360. Adde infra, § 40.


of this directive stipulates that Member States shall not derogate from the principle of free

movement save on grounds of public policy, public safety and public health. The

reservation concerning public health may be used in the context of article 3 (entry) and

article 4 (first residence permit) of the directive, but not with regard to article 6 (renewal of

residence permit). It makes granting a residence permit subject to taking a medical

examination certifying that the person is not affected by the diseases figuring in the annexe

to Directive 64/221. This annexe does not expressly mention AIDS (see infra, § 36).

The right of residence does not only concern workers. It also extends to students,

retired people and any European citizen with adequate financial resources. Directive

93/96 on the right of residence of students 36 recognises the right of residence for any student

who is a national of a Member State and who does not enjoy that right under other

provisions of Community law, and for the student’s spouse and children. Directive 90/365

on the right of residence for employees and self-employed persons who have ceased their

professional activities 37 grants the right of residence to nationals of Member States who

have pursued an activity as an employee or self-employed person, and to members of their

families. This is the directive covering retired people. Finally, Directive 90/364 on the right

of residence 38, the so-called ‘residual’ directive, recognises the right of residence for

nationals of Member States who do not enjoy this right under other provisions of

Community law, and to members of their families.

34. Two aspects need to be highlighted in the three residence directives. The first aspect

concerns health insurance coverage as a condition for the right of residence. For HIV-

positive people and those infected with AIDS, such insurance should cover the cost of

care, which could be very high. In the case of students, the condition concerning health

insurance poses no problem provided that they are insured in their country of origin as

dependants of the insurance policyholder. However, the situation will be different if they

have subscribed, in the country of origin, to a special insurance scheme for students,

which does not always provide cover in the host country, in which case major payments

will have to be made in the form of premiums. For retired people, the condition of being

36 OJ, L 317, 18 December 1993, p. 59.37 OJ, L 180, 13 July 1990, p. 28.38 OJ, L 180, 13 July 1990, p. 26.


covered by health insurance should not raise problems because such people were formerly

workers covered by a social security system. Difficulties may nevertheless arise for the host

country if the person returns to his country of origin to receive care (in this case articles

29 et seq of Regulation 1408/71 of 14 June 1971 concerning the application of social security

systems to employees and self-employed persons travelling within the Community 39 apply).

Within the framework of the residual directive, the condition concerning health

insurance limits freedom of movement because it presumes subscription to a private

insurance scheme, since Regulation 1408/71 on social security does not apply to people

who are not working.

The second aspect of note in the three residence directives is the possibility of

derogation from the provisions on grounds of public policy, public security and public

health. In this case residence directives refer to Directive 64/221.

35. Directive 64/221 of 25 February 1964 on the coordination of special measures

concerning the movement and residence of foreign nationals which are justified on

grounds of public policy, public security or public health 40 is aimed at nationals of a

Community Member State who reside or go to another Community Member State either

with a view to pursuing an activity as an employed or self-employed person, or as a

recipient of services. The directive also applies to spouses and members of the family

(article 1). The field of application of the directive has been extended to workers and

members of their families who remain on the territory of a Member State after having

held a job (Directive 72/194 of 18 May 1972 41) and to persons who remain on the

territory of a Member State after having exercised an activity as a self-employed person

(Directive 75/35 of 17 December 1974 42). The reference made to this by the three 1990

residence directives extends the field of application to all European nationals who reside

on the territory of another Union country.

Directive 64/221 relates to measures concerning entry into their territory, the issue

or renewal of residence permits, or expulsion from their territory, taken by Member States

on grounds of public policy, public security or public health (article 2).

39 OJ, L 149, 5 July 1971.40 OJ, L 56, 4 April 1964, p. 850.41 OJ J, L 121, 26 May 1972.42 OJ, L 14, 20 January 1975.


36. Article 4 of the directive states that the only diseases justifying refusal of entry or

refusal to issue a first residence permit are those listed in the Annexe to the directive.

This list does not include either AIDS or HIV-positivity but rather ‘other infectious

diseases or contagious parasites diseases if they are the subject of provisions for the

protections of nationals of the host country’ 43. Do AIDS and HIV-positivity fall into the

concept of ‘other infectious diseases or contagious parasitic diseases’? Certain authors are

against this idea. They invoke the fact that AIDS and the HIV virus are transmitted only

in very particular circumstances, and that the reservation of public health should be

interpreted restrictively 44. Others are of the opinion, to the contrary, that the expression

‘other infectious diseases or contagious parasitic diseases’ includes any contagious disease

not yet listed in the annexe. They base their arguments on the directive’s preamble which

states that it would be difficult to compile an exhaustive list and therefore, as a result, it is

sufficient to classify those diseases which could endanger public health into groups 45.

43 Annexe to Directive 64/221:A. Diseases which might endanger public health:

1. diseases subject to quarantine listed in International Health Regulation no. 2 of the World HealthOrganization of 25 May 1951;2. tuberculosis of the respiratory system in an active stage or showing a tendency to develop;3. syphilis;4. other infectious diseases or contagious parasitic diseases if they are the subject of provisions for theprotection of nationals of the host country.

B. Diseases and disabilities which might threaten public policy or public security:1. drug addiction;2. profound mental disturbance, manifest conditions of psychotic disturbance with agitation, delirium,hallucinations or confusion.

44 M. DISPERSYN, ‘Les personnes séropositives ou atteintes du sida et la libre circulation dans la Communauté’,in Le sida, un défi au droit: actes, Brussels, Bruylant, 1991; D. MARTIN and E. GUILD, Free Movement ofPersons in the European Union, London, Butterworths, 1996, p. 110: ‘When read together paragraphs 1 and 3make it clear that the fact of being infected with HIV virus cannot justify recourse by a Member State to thepublic health proviso of article 48(3)’.This idea is found in Resolution 255 (1994) ‘on local and regional authorities faced with AIDS and HIV-positivity’ of the Permanent Conference of Local and Regional Authorities of Europe, which observes that ‘AIDSis a disease which, generally, is transmitted by voluntary risk behaviour. The infection is not transferable in dailylife (...). The conventional public health measures are difficult to apply.’ (item 1). See also the explanatorymemorandum of Recommendation 94 (14) of the Council of Europe according to which ‘the reasoning whichjustifies restrictions on free movement, quarantine, and isolation is not applicable in the case of HIV infection, inthe absence of contagion in daily life, due to the long latency period and in the absence of curative treatment’(item 173).

45 J. VAN OVERBEEK, ‘AIDS/HIV infraction and the free movement of persons within the European EconomicCommunity’, Com.M.L.R. 1990, p. 91.


37. What is true is that the constant case law of the European Court of Justice has

established that the free movement of persons is a general and directly applicable

principle, which should be interpreted extensively, with any limitation to this principle

being necessarily interpreted in a restrictive manner 46. However, it appears difficult for us

to maintain that HIV/AIDS could not be included under the infectious or contagious

parasitic diseases referred to in item 4 of letter A of the Annexe, which was published at a

time (1964), where this disease was not yet known.

The fact remains that, in this case, if one upholds that AIDS is to be included in the

field of application of Directive 65/221, two conditions still need to be fulfilled for

limitations on residence founded on AIDS be in conformity with Community law.

38. First of all, based on the Annexe, it is necessary to prove the existence, in the state

invoking the public health reserve, of provisions to protect nationals.

39. Secondly, Article 4 of the directive includes a stand still clause which prevents

Member States from introducing ‘new provisions or practices which are more restrictive

than those in force at the date of notification of this Directive’.

The fact is that AIDS appeared only after this date. Three options are possible,

supposing that AIDS is targeted by the directive. The first option is to affirm that any

measure is more restrictive, as none existed at the date of notification of the directive,

and that consequently, AIDS cannot be the subject of any control 47. The second option

considers, on the contrary, that no measure is more restrictive, as no measure existed at

the date of the directive and, in consequence, AIDS can be controlled by every means.

Finally, a third option consists of accepting that, since this is a new disease, new measures

are possible, but that these may not be more restrictive than those which apply to the

other diseases mentioned in the Annexe. In other terms, the more restrictive measures

which are not permitted are those which were not applied previously, and which are

unjustified, discriminatory or disproportionate. This could be the case for systematic HIV

screening when crossing frontiers. We support this latter thesis, which falls under the

application of the principle of proportionality.

46 J.Y. CARLIER, ‘La circulation des personnes dans l’Union européenne’, J.T.D.E., 1995, p. 99; ECJ, 13 July 1983,Forcheri, C-152/82, ECR, p. 2327, point 11; ECJ, 3 July 1986, Kempf, C-139/85, ECR, p. 1741, point 13; ECJ, 26Feburary 1991, Antonissen, C-292/89, ECR, p. 745.

47 This is the implicit option of D. MARTIN and E. GUILD, o.c., note 44.


40. With regard to the right of establishment and provision of services, Directive 73/148

on the abolition of restrictions on movement and residence within the Community for nationals of

Member States with regard to establishment and the provision of services 48 makes provision for

Member States to abolish restrictions on movement and residence for nationals of

Member States who are established or wish to establish themselves in another Member

State in order to pursue activities as self-employed persons, or who wish to provide

services in that state, for nationals of Member States wishing to go to another Member

State as recipients of services, and these nationals’ family members. The Member States

may derogate from the provisions of this directive solely on grounds of public policy,

public security or public health. With regard to the public health reservation, reference

should be made to the list annexed to Directive 64/221 (see supra, § 36). Indeed, Article

10 of Directive 73/148 states that the Directive of 25 February 1964 on the abolition of

restrictions on movements and residence within the Community for nationals of Member

States with regard to establishment and the provision of services shall remain applicable

until Directive 73/148 is implemented by the Member States. However, with respect to

the above-quoted Directive of 25 February 1964, the Economic and Social Committee

has stated that, in the area of public health, reference should be made to the list annexed

to Directive 64/221 49.

41. For the principle of free movement of persons to be effectively secured to the benefit

of workers, Regulation 1408/71 makes provision for the preserving of social security

rights. This regulation contains provisions which could eventually apply to people

suffering from AIDS and to HIV virus carriers. In particular, we should look at articles 22

and 35-3 included in Chapter I entitled ‘Sickness and maternity’ of Title III of the

regulation.

Article 22 covers the following possibilities: stay outside the competent state –

return to or transfer of residence to another Member State during sickness, and the need

to go to another Member State in order to receive appropriate treatment. The regulation

provides for the right to benefits in kind provided on behalf of the competent institution

by the institution in the place of stay or residence in accordance with the legislation

which it administers, the length of the period during which benefits are provided being

48 OJ, L 172, 28 June 1973, p. 14.49 OJ, 4 April 1964, p. 850/64.


governed, however, by the legislation of the competent state. The regulation also makes

provision for the right to cash benefits provided by the competent institution in

accordance with the legislation which it administers. These benefits may be provided by

the institution of the place of stay or residence on behalf of the competent institution, in

accordance with the legislation of the competent state.

Article 35-3 of the regulation provides in turn that where, under the legislation of a

Member State, the granting of benefits is conditional upon the origin of the illness, that

condition shall apply neither to workers nor to the members of their families.

2. Third country nationals42. The secondary legislation as analysed above with regard to the right of residence of

Community nationals may also present an interest for third country nationals, in

particular those from developing countries. On the one hand, these provisions extend to

the families of Member State nationals, even when the family members (spouse, parents,

children) do not have the nationality of a Member State. A couple consisting of a

Belgian male and Rwandan female, or an English female and a Pakistani male will, for

example, be directly involved. On the other hand, the general principles in favour of

European citizens, including the principle of free movement and the interpretation of the

limits of public policy or public health, will guide the interpretation of the same concepts

when applied to access to the territory by third country nationals.

Third country nationals’ right of residence may result from family reunification

agreements concluded between the Community and third countries, or, for other

foreigners, from the privilege of residence as a worker.

43. With respect to family reunification, we need to distinguish between two categories.

The first category consists of family members (spouse, parent, dependent children and

children under the age of 21) of European citizens, who are assimilated as Union citizens 50.

For the delivery of a residence permit and access to the territory, a visa may first be

required, but Member States are required to grant ‘all facilities for obtaining visas’ 51. Both

these texts and jurisprudence show that no other condition, for example relating to

50 Regulation 1612/68 of 15 October 1968 concerning the free movement of workers within the Community.51 Directive 68/360 of 15 October 1968 concerning the abolition of restrictions on movement and residence within the

Community of workers from Member States and their families, article 3, paragraphs 2 and 3.

public health, or a fortiori attached to AIDS, can limit the right of access to the territory

of the Union for family members of a Union citizen 52. The same applies for the family

of a national, in those cases when national legislation assimilates this family to that

of a European 53.

The second category consists of the family members of third country nationals who

are regularly resident in the territory of a Union Member State. In principle, it is national

law which determines the conditions of residence attached to the family reunification of

such persons.

44. However, insofar as all Union Member States have this type of family reunification, it

has appeared useful to strive towards a certain harmonisation of legislation, within the

framework of inter-governmental cooperation. It is with this intention that ministers

responsible for immigration adopted, at the Copenhagen summit on 1 June 1993, a

resolution concerning the harmonisation of national policies on the subject of family

reunification. This resolution relates to third country nationals who are regularly resident

in the territory of a Member State, on a basis offering them the prospect of permanent or

long-term residence. Member States reserve the right to make entry and residence of

family members subject to their having health insurance coverage. For persons who are

HIV-positive or who have AIDS, this insurance needs to cover the cost of treatment,

which can require heavy contributions. Moreover, in this resolution, states reserve the

right to refuse entry and residence for public health reasons. This reservation ought to be

subject to identical interpretation to that of Directive 64/221, permitting a restriction

linked to AIDS only if this is based on a measure which is no more restrictive than that

previously existing for other sicknesses, and if the means used is proportionate to the

objective pursued, which, as we have seen, appears difficult.

45. With regard to agreements concluded between the Community and third countries,

certain provisions of the association agreements with Turkey, of the cooperation

agreements with the North African countries, and the Lomé agreements can concern the

free movement of persons living with HIV/AIDS.


52 ECJ, 31 May 1991, Communities v. Netherlands, C-68/89, ECR, 2637.53 Belgian law of 15 December 1980 concerning access to the territory, residence, establishment and the expulsion of

foreigners, article 40, paragraph 6; ECJ, 18 October 1990, Dzodzi, C-297/88 and 197/89, ECR, 3763.

46. Article 39 of the supplementary protocol to the EEC-Turkey association agreement of

20 November 1970 54 makes provision for aggregating insurance periods for, in particular,

health care for workers and their families. Moreover, article 6-2 of decision no. 1/80 of

the EEC – Turkey Association Council of 1 September 1980 55 states that absences for

reasons of long-term sickness do not affects rights acquired by virtue of the previous

period of employment, whilst article 14 states that the provisions of the decision are

applied subject to limitations justified by reasons of public policy, public security and

public health. Would Turkish workers benefit, with respect to this provision, from an

interpretation by analogy with Directive 64/221 and the Court’s interpretation with

regard to reservations of public policy and public health? Yes, if we consider that the

principle of non-discrimination ‘with regard to conditions of work and pay’ should be

extended to the right of residence linked to periods of employment. This is not certain 56.

47. The cooperation agreements concluded with Morocco, Algeria and Tunisia 57 make

provision for a system based on absence of discrimination in the field of social security as

well as the aggregation of periods of insurance when it comes to medical care.

48. With regard to the Lomé agreements signed between the EEC and the ACP

countries 58, article 5 provides that ‘the Member States of the Community (and/or where

appropriate, the Community itself) and the ACP States will continue to ensure, through

the legal or administrative measures which they have or will have adopted, that migrant

workers, students and other foreign nationals legally within their territory are not subject

to discrimination on the basis of racial, religious, cultural or social differences, notably in

respect of housing, education, health care, other social services and employment’. By

virtue of this provision, the principle of non-discrimination could be invoked by ACP or

Community nationals suffering from AIDS or who are carriers of the virus. However,


54 OJ, L 293/3/1972.55 OJ, C 110/6, 25 April 1983.56 Article 37 of the Supplementary Protocol, OJ, L 293, 29 December 1972, and article 6 of Decision no. 1/80 of the

Association Council.57 OJ, L 263, 264 and 265, 27 September 1978.58 Fourth Convention of 15 December 1989, OJ, 1991, L 229, p. 3.

Article 5 provides only limited protection as it covers only persons already legally inside

the territory of a contracting state. This article therefore does not cover access to the

territory of the Union, and can, with difficulty, cover movement or residence within the

Union in so far as are targeted ‘housing, education, health care, other social services and

employment’, preceded, it is true by the adverb ‘notably’. Moreover, article 5 has no

direct effect, given that it is couched in very general terms and is placed within the text

of the Agreement in Chapter I, ‘Objectives and principles of cooperation’, within the first

part of the Convention, entitled ‘General provisions of ACP-EEC cooperation’.

As a result, ACP nationals who benefit from the right of movement within the

Union, once they are regularly resident there, given the removal of internal frontiers

control of all people, remain subject to national legislation, within the limits set out

above, with regard to access to and residence in the Union.

49. Other foreigners who do not fall into a privileged category due to family reunification

or special agreements, are therefore dependent, when it comes to any rights of residence,

on the national legislation concerned. In general this legislation makes the right of

residence a privilege which each state may grant, subject to such conditions as it

considers appropriate.


IV First conclusions (international and European law)50. The Community institutions have, on several occasions, come out in favour of

safeguarding the free movement within the Union of people suffering from AIDS or carrying

the virus. In their conclusions of 15 May 1987 59 and of 31 May 1988 60, the Council and the

representatives of Member State governments condemned the systematic screening and

contradictory national policies with respect of third countries. Systematic screening was also

advised against in the resolution of the Council of Health Ministers of 22 December 1989 61.

The same principles were expressed in a European parliamentary resolution of 30 March

1989 62 which asks Member States to abolish tests at borders, and to stop expelling third

country nationals for reasons linked to HIV/AIDS. In this way, the Commission has

manifested its attachment to the principle of the free movement of persons 63.

Parallel with this, the European Community has constantly given absolute priority to

prevention through information and education, and particularly that aimed at target

groups, including migrants.

51. However, all these texts constitute declarations of intent, which are without binding

force, and which individuals cannot invoke before the Court, even if, as the case may be,

the Court could decide to interpret them based on Article 177 of the Treaty 64. Moreover,

Directive 64/221 on the coordination of special measures concerning the movement and

residence of foreign nationals which are justified on grounds of public policy, public

security or public health, does not contain any explicit reference to AIDS. As a result,

several options are theoretically possible.


59 OJ, C 178, 7 July 1987, p. 1.60 OJ, C 197, 27 July 1988, p. 8.61 OJ, C 10, 16 January 1990, p. 3.62 OJ, C 158, 26 June 1989, p. 477.63 COM(87) 63 final, 11 February 1987, p. 2, COM(88) 268 Final, 17 May 1988, p. 2. See all those texts in

Annexe I, 3, p. 224.64 J. VAN OVERBEEK, o.c., p. 191.

52. First of all, one could conclude that since controls are not forbidden by any binding act,

they are permitted, and that, on the other hand, there is no obstacle in Directive 64/221

preventing states from taking restrictive measures with regard to the free movement of

persons living with HIV/AIDS 65. However, this interpretation can pose a problem, as it is

not certain that AIDS counts among the ‘other infectious diseases or contagious parasitic

diseases’ targeted by Directive 64/221. And even if this is the case, two difficulties arise: first

of all, for this interpretation to be valid, provisions to protect nationals have to exist in the

state invoking the public health reservation. Finally, Article 4 of Directive 64/221 forbids

Member States from taking measures which are more restrictive than those in effect at the

date of notification of the directive (supra, §§ 36 to 39).

53. Secondly, one could propose adopting a directive forbidding obligatory screening at

frontiers. This would get round the difficulty linked to the absence of a binding text.

Certain authors have suggested a directive to ensure the free movement of homosexuals

who are HIV-positive or have AIDS 66, but the directive could be general and cover all

people affected by AIDS or carrying the virus. However, if this directive were to be based

on Article 100 of the Treaty, this would require a unanimous vote in the Council. Apart

from this obstacle, this solution would not put an end to indirect discrimination, for

example towards people considered as belonging to risk groups 67.

54. Thirdly, one could envisage modifying the annexe to Directive 64/221, either to

introduce AIDS, or, on the contrary, to prevent initiatives aimed at including AIDS in

the list of diseases in the annexe 68.

55. Fourthly, it could be argued that any infringement of the freedom of movement of

persons which is not explicitly authorized by the texts is contrary to Community law. This

position is based on the constant affirmation of case law according to which the free

movement of persons is the rule, and should be broadly interpreted, whereas any limitation


65 J. VAN OVERBEEK, o.c.66 F. SNYDER, ‘Subsidiarity: an aspect of European Community Law and its relevance to lesbians and gay men’,

in Homosexuality, a European issue, edited by Kees Waaldijk and Andrew Clapham, Doordrecht, MartinusNijhoff Publishers, 1993, p. 235.

67 J. VAN OVERBEEK, o.c.68 M. DISPERSYN, o.c.

of free movement is the exception and should be interpreted in a restrictive fashion. From

this viewpoint one should emphasize the fact that Directive 64/221 does not carry any

explicit reference to AIDS and that it forbids states from taking more restrictive measures

than those in effect at the time of notification of the directive (which can be interpreted as

meaning that states cannot adopt measures which were not applied previously and which

are unjustified, discriminatory and disproportionate). The fact remains that, within the

meaning of European law, free movement refers to residence within the territory of Europe,

not to access to this territory by the crossing of external borders, in particular for nationals

from developing countries. However, the free movement of persons, as a general and

broadly interpreted principle, appears to have necessarily to extend progressively to access

to the common territory, in so far as exceptions to the freedom of movement must be

proportional to the objective pursued. In this way, the successive acts adopted by the

Community institutions, even though not binding, testify to the desire of the Community

to secure the principle of free movement for people suffering from AIDS or carrying the

virus. When it comes more specifically to the texts adopted by Member States’

representatives within the Council, it would be contradictory for states to take action at

national level against the disease without respecting the principles to which they have

subscribed 69. In a decision relating to AIDS screening tests for officials, the Court of Justice

considers that ‘the right of respect of private life, enshrined in Article 8 of the European

Convention on Human Rights, and which derives from the constitutional traditions shared

by Member States, constitutes one of the fundamental rights protected by the Community

legal order’ and that ‘it includes in particular a person’s right to keep his state of health

secret’. The Court acknowledges that restrictions can be applied to fundamental rights, but

‘provided that they in fact correspond to objectives of general interest and do not

constitute, with regard to the objectives pursued, a disproportionate and intolerable

interference which infringes upon the very substance of the right protected’ 70. The fact is

that obligatory screening at borders could well constitute a ‘disproportionate interference’,

with regard to the objective of general interest being pursued.


69 P. KLEIN, ‘Les organisations internationales face au sida’, Rev. belge dr. int., 1990, p. 153.70 ECJ, 5 October 1994, X. v. Commission of the E.C., C-404/92P, ECR, 1994, I-4737.

56. By way of conclusion, by combining international or regional texts protecting

fundamental rights with the provisions relating to the movement of persons specific to

European law, we can outline, at least within the Community legal order, the following

principles:

1. It is absolutely contrary to international law to practice or demand an HIV/AIDS

test for persons crossing a border of any kind, without provision being made for this

practice in a published legislative text, setting out the legitimate objective which is

being pursued. No HIV/AIDS control without text.

2. Even where a text does exist, HIV/AIDS tests are:

a) out of the question for crossing internal borders within the Union, for everyone

(right to travel);

b) quasi-out of the question for the passing of external borders and for residence in

another Union country for citizens of the Union and certain privileged foreign

nationals (Directive 64/221 and proportionality principle);

c) difficult for the crossing of external borders for non-privileged foreign nationals,

in particular those coming from developing countries (proportionality in the

principle of non-discrimination).


European UnionMember States

Part 2

54 The free movement of persons living with HIV/AIDS – Part 2: European Union Member States

I PresentationA. Description57. The second part is divided into two sections.

The first section takes an across-the-board approach, examining the legislation of the

fifteen European Union Member States on the free movement of people living with

HIV/AIDS (II). This general examination of national legislation is sub-divided into three

parts, concerning (A) the entry, (B) the residence and (C) the expulsion of people

travelling to Europe who are living with HIV/AIDS. Two further sub-divisions examine

(D) the first ruling of the European Court of Human Rights on the expulsion of a

foreigner living with HIV/AIDS and (E) the principle of proportionality.

The second section gives the conclusions of this across-the-board approach (III).

The third section successively examines the laws, regulations, and where possible, the

practices of the fifteen European Union States with relation to the movement of

foreigners living with HIV/AIDS (IV). Mention of the countries is made by their official

initials and their study made in alphabetical order of the initials. This section of the study

is based mainly on an analysis of legislative and regulatory texts adopted by Member

States on the subject of immigration. This main source was supplemented by an analysis

of case law and doctrine relating to the issue of the free movement of people living with

HIV/AIDS, as well as practical information obtained from governmental and non-

governmental organisations 70b.

58. Thirty questionnaires were sent to the fifteen Union Member States. In each state the

questionnaire was sent to a governmental organisation (ministry) as well as to a non-

governmental organisation (association). Nineteen questionnaires were answered by the

following organisations:

■ Austria: Ministry of the Interior, Ministry of Labour, Health and Social Affairs and

AIDS-Hilfe Wien

■ Belgium: Foreigner’s Office and the Foreigners’ Social Service (Service social des

étrangers)

70b The initials can be found in the List of abbreviations at the beginning of the book. The legal texts are inAnnexe II, 1, at the end of the book.

The free movement of persons living with HIV/AIDS – Part 2: European Union Member States 55

■ Denmark: E. Brinch Jorgensen

■ Finland: Ministry of Social Affairs and Health (Ombudsman for Foreigners) and the

Ministry of the Interior

■ Germany: Ministry of the Interior

■ Ireland: Irish Refugee Council

■ Italy: F. Trucillo (lawyer)

■ Luxembourg: Ministry of Health and the SESOPI – Inter-Community Centre

(SESOPI – Centre intercommunautaire)

■ Netherlands: Ministry of Justice and the Dutch HIV Association (HIV Vereniging

Nederland)

■ Spain: Ministry of Health and Consumer Affairs and the Spanish Commission for

Aid to Refugees (Comisión Española de Ayuda al Refugiado)

■ Sweden: National Immigration Board and the Noah’s Ark Red Cross Foundation

■ United Kingdom: Terence Higgins Trust and the Immigration and Nationality

Directorate.

B. Main conclusions from Part II59. The main restrictions observed in the countries of the European Union on the free

movement of people living with HIV/AIDS primarily relate to nationals from countries

other than the fifteen Union Member States, and sometimes to specific categories of third

country nationals such as students. This especially concerns nationals of developing

countries. Such restrictions usually relate to long-term residence. They can stem from legal

provisions stipulating the submission of a medical certificate for entitlement to a residence

permit and even from specific provisions excluding the right of residence for people living

with HIV/AIDS. In some cases these restrictions have no specific legal basis at all.

An examination of national legislation and practices in the various Union countries

reveals variations, mainly with respect to third country nationals. This would appear to

indicate a lack of harmonisation among European Union Member States in policies

regarding nationals from non-Union countries living with HIV/AIDS. Although this

issue chiefly concerns European Union health and immigration policies, it is also at the

heart of relations between the Union and developing countries.

From a human rights standpoint it is apparent that restricting the free movement of

people living with HIV/AIDS is an a priori disproportionate means for controlling this


pandemic. A European Court of Human Rights decision of 2 May 1997 ruled that the

expulsion by the United Kingdom of a foreigner in the terminal stages of AIDS, was

inhumane and degrading treatment which contravened article 3 of the European

Convention on Human Rights (infra, §§ 76 et seq.).

60. It is possible to classify European Union Member States into three main groups with

regard to entry to the territory and residence of third country nationals, particularly

developing countries, relating to HIV/AIDS.

The first group (five states: B, D, FIN, NL, P) does not expressly provide for public

health controls.

The second group (six states: DK, E, GR, I, IRL, UK) provides for public health

controls without expressly mentioning HIV/AIDS. In practice, some countries do not

practice HIV/AIDS testing whilst others practise ‘voluntary’ testing which may or may

not be followed by measures to refuse entry or residence.

The third group (four states: A, F, L, S) expressly excludes HIV/AIDS testing,

sometimes in legislation specifically concerning entry to and residence in the territory (L)

and sometimes in general legislation (law or decree: A and S), or limits the possibility of

controls (F: limited to ‘clinical signs’).

In the long-term, Member State obligations could evolve from a negative obligation

not to implement measures hindering the free movement of people living with

HIV/AIDS (standstill), towards a positive obligation expressly excluding HIV/AIDS

controls governing entry to the country and residence, following the example of

Luxembourg.

This raises the question of whether or not positive action is needed since, although it

protects a particular group (in this case people living with HIV/AIDS), it also stigmatises

this group in the eyes of the general public (infra, § 561).


II General examination of legislation in European Union Member StatesA. Entry1. Union citizens61. The legislation of several states stipulates that Union citizens may be refused entry on

public health grounds. Such legislation reproduces the list of diseases enumerated in

Directive 64/221 71 (B 72, IRL 73, NL 74, P 75) or part of this list (E 76, F 77). French legislation

only mentions drug addiction and blatant psychological or mental disorders, clear states of

excitative type psychosis, paranoid psychosis or hallucinations or mental confusion, which

excludes HIV/AIDS. Spanish legislation, like French legislation, only partially reproduces

the list of diseases annexed to Directive 64/221, but the illnesses included are those listed

in the International Health Regulations, drugs and other infectious diseases or contagious

parasitic diseases, if they are the subject of measures to protect Spanish nationals.

It should be noted that Member States which do not transpose the entire list annexed

to the directive are not infringing Community law. Since public health is an exception to

the principle of free movement, its interpretation is restrictive. The diseases mentioned in

the annexe to the directive are ‘the only ones … justifying refusal of entry into a territory’

(article 4). Consequently only states where legislation adds to the diseases on the list

would be infringing Community law, which is not the case for any Member State.

2. Third country nationals62. The legislation of several states does not expressly provide for refusal of entry to third

country nationals on public health grounds (B, D, FIN, NL, P, S).

71 See §§ 35 et seq. above for an analysis of the directive. 72 Article 43 of the law of 15 December 1980.

National legislation is referenced by the date of the basic legislation. Account has been taken of updates tosuch legislation (see Annexe II, 1, Member States, p. 230).

73 Article 4 of the European Communities (Aliens) Regulations of 1977.74 Article 91 of the decree of 19 September 1966.75 Article 12 of the statutory order of 3 March 1993.76 Article 15 of the decree of 26 June 1992.77 Article 6 of the decree 94/211 of 11 March 1994.


By contrast, several countries have legislation which instigates medical controls for

people entering the territory (DK 78, E 79, F 80, GR 81, I 82, IRL 83, L 84, UK 85). Luxembourg

legislation expressly excludes medical controls for HIV/AIDS 86.

Some states refuse to carry out systematic AIDS testing at borders, either by virtue of

a normative act (A 87), or of a general policy (e.g. DK, I, NL, S).

B. Residence1. Union citizens63. In some countries, national legislation provides for Union citizens to be refused

residence on public health grounds. Such legislation reproduces the list of diseases

figuring in the annexe to Directive 64/221 (B 88, IRL 89, NL 90, P 91) or part of this list (E 92,

F 93). The analysis of this national legislation is the same as for Directive 64/221 94.

2. Third country nationals2.1. Residence permits

64. Some Union Member States have adopted rules which allow for residence to be

refused on public health grounds and call for a compulsory medical certificate before a

residence permit can be granted (E 95, I 96, GR 97, L 98, P 99).

78 Article 28 of Act no. 894 of 27 October 1994.79 Article 11 of the law of 1 July 1985.80 Article 4 of the order of 7 November 1994.81 Article 6 of law 1975/91.82 Article 3 of the law of 28 February 1990.83 Article 3 of the 1975 Aliens Order.84 Article 2 of the law of 28 March 1972.85 Annexe 2, section 4, part I.2 of the 1971 Immigration Act.86 Article 5 of the Regulation of 17 October 1995.87 Decree of 25 February 1987.88 Article 43 of the law of 15 December 1980.89 Article 12 of the European Communities (Aliens) Regulations of 1977.90 Article 97 of the decree of 19 September 1966.91 Article 12 of the statutory order of 3 March 1993.92 Article 15 of the decree of 26 June 1992.93 Article 6 of decree 94/211 of 11 March 1994.94 See §§ 35 et seq above.95 Article 56 of the implementing Regulation of 23 February 1996.96 Article 4-12 of the law of 28 February 1990.97 Article 12 of law 1975/91.98 Article 2 of the law of 28 March 1972.99 Article 4 of the decree of 15 December 1993.


In other states or regional sub-divisions of states, texts stipulate that an HIV test

has to be carried out and that residence should be refused to persons living with

HIV/AIDS (Bavaria 100). The European Commission has reacted against measures such

as these 101.

By contrast, some states have adopted regulations prohibiting refusal of the right of

residence on the grounds of being HIV positive, in the absence of clinical signs (F 102).

Nonetheless, an a contrario interpretation of French legislation indicates that the

presence of clinical signs can justify refusal of the right of residence. This raises the issue

of defining the concept of ‘clinical signs’ 103.

65. This being a public health issue, several countries make no distinction in their

legislation between access to the territory which includes both a short stay of under three

months and long-term residence. However, the above observations mainly concern long-

term stays. This is because the measures taken by certain states are motivated by

economic concerns. Indeed, high treatment costs for sufferers may make Member States

reluctant to defray the possible medical costs of persons living with HIV/AIDS in cases

where such persons do not have adequate financial resources. This concern emerged in

the replies to our questionnaires by various governmental organisations (infra III, ex. § 187).

It should be noted that article 2, paragraph 2 of Directive 64/221 on the coordination

of special measures concerning the movement and residence of foreign nationals which are

justified on the grounds of public policy, public security or public health stipulates that ‘such

grounds shall not be invoked to economic ends’. Even though the directive concerns only

Union citizens, it may, with regard to the principles of proportionality and non-

discrimination, be used to guide the interpretation of the same grounds given to justify

measures relating to third country nationals.

66. In some states it is possible for foreigners living with HIV/AIDS to be granted the

right of residence on humanitarian grounds. This is the practice in the United Kingdom

and the Netherlands in cases where the person has already been living in the country for

100 Notice no. 1A2-2081.10 of 19 May 1987 (Bekanntmachung des Bayerischen Staatsministeriums des Inneren).101 Le Courrier ACP-CEE, September-October 1987, no. 105, p. XII.102 Circular of 8 December 1987.103 P. VAN OVERBEEK, ‘AIDS/HIV infection and the free movement of persons within the European

Community’, Com.M.L.R., 1990, 91.


a certain time. It is also the case in Denmark, by virtue of paragraph 9.3 of the Aliens’

Act, where the foreigner has not been granted refugee status. In France, a foreigner

suffering from AIDS may, at the discretion of the authorities, be granted refugee status. In

France, a foreigner suffering from AIDS may, at the discretion of the authorities, be

granted (Autorisation provisoire de séjour – APS).

2.2. Work permits

67. In the legislation of some Member States, information regarding health (FIN 104) or a

medical certificate (B 105, P 106) may be required when a work permit is requested. In some

national legislation it is stipulated that authorisation to enter the country for work

reasons may be revoked on public health grounds (GR 107).

In some states the HIV test is compulsory for certain foreigners requesting a work

permit (GR 108).

2.3. Studies

68. Some Union Member States make a residence permit for studies conditional on the

applicant scholarship-holder not having the HIV virus or AIDS (B 109, GR) although it is

not necessarily possible to find a legal basis for the measure.

When testing is offered to – rather than imposed on – foreign students, this raises the

issue of whether testing is indeed practised systematically and whether foreign students

are really aware of their right to refuse it.

69. Again the measures adopted with regard to students reflect economic concerns

relating to the risk of bearing the financial cost of medical treatment. Furthermore, the

legislation of several countries stipulates that students must be covered by health

insurance. This condition corresponds to the condition contained in Directive 93/96 on

the right of residence for Community students 110.

104 Article 28 of the law of 22 February 1991.105 Article 2 of the Royal Decree of 6 November 1967 and article 6 of the Royal Decree of 2 August 1985.106 Article 4 of the decree of 15 December 1993.107 Article 22 of law 1975/91.108 P. CATTORINI, D. MORELLI and M. ZANCHETTI, AIDS: Comparison and analysis of European Legislation

on AIDS from an ethical and legal standpoint, Istituto Scientifico H. San Raffaele, Milan, 1996.109 In Belgium the initially compulsory test is now offered to students on their arrival.110 See § 33 above.


70. In the Council resolution of 30 November 1994 on the admission of third-country nationals

to the territory of Member States for study purposes 111, the Council considers that Member

States should facilitate the admission and residence of third country nationals who have

come to study in Europe. Conversely, the measures taken by Member States to impose HIV

testing restrict the right of residence for students who are third country nationals. However,

the Council resolution is not binding and, moreover, it expressly stipulates that application

of the principles it contains should not override national provisions for protecting public

order, public security and public health. Nevertheless, such restrictions should be subject to

restrictive interpretation and ought to be exceptions to the rule.

2.4. Right of asylum

71. In general, the test is carried out on a voluntary basis (B, F, NL, S). Nevertheless, this

once again raises the problem of whether the asylum seeker is aware of his right to refuse

testing and whether testing is indeed carried out systematically. In the past, Belgium did

practise systematic testing although it no longer does so today.

Some texts provide for the right of asylum to be refused to persons living with

HIV/AIDS (Bavaria 112).

72. The systematic testing of asylum seekers raises problems of compatibility with the

Geneva Convention of 28 July 1951 relating to the Status of Refugees. Article 33 of this

convention includes the principle of not returning a refugee (non-refoulement), including

an asylum seeker according to all doctrine, to a country in which he fears for his life or

liberty. This principle of not turning away asylum seekers contains one exception where

there is a threat to the security of the host country. It includes no exceptions based on

public health. A Council resolution of 20 June 1995 113 on minimum guarantees for asylum

procedures does however stipulate that the authorities responsible for requests for asylum

have the right, where necessary, to request the opinion of experts on specific issues,

especially those of a medical nature. However, the ratio legis of this provision is to permit

the decision-making authorities to request information on medical aspects associated

with the fear of persecution claimed by the asylum seeker, and not to use such medical

111 OJ, C 274, 19 September 1996, p. 10.112 Bekanntmachung des Bayerischen Staatsministeriums des Inneren of 19.5.87, no. 1E/1A/1C-5280-8.2/7/87.113 OJ, C 274, 19 September 1996, p. 13.


information to refuse the asylum seeker either entry or residence.

73. Right of asylum can sometimes be granted on humanitarian grounds where an

individual has the HIV virus or AIDS (practices observed in B, E, FIN, NL, S).

C. Expulsion74. In their legislation, several states state that a foreigner may be expelled on the

grounds of public health (B 114, D 115, GR 116, L 117, with regard to people entitled to

residence on the basis of Community law, E 118, FIN 119, IRL 120).

Some express provisions were made for expelling persons living with HIV/AIDS

(Bavaria 121).

75. Expulsion can have serious consequences for people whose state of health requires a

level of medical care not certain to be provided in the country of origin, which is

particularly the case for nationals of developing countries. Furthermore, the execution of

the expulsion decision may in itself create risks for the person in question 122. Hence the

measure taken may sometimes be disproportionate to the fact which originally justified it.

Again, it is the criterion of proportionality which can be used to judge the legality of the

measure (supra, §§ 36 et seq).

D. Human rights: inhuman and degrading treatment (Strasbourg)76. The European Court of Human Rights ruled for the first time on the expulsion of a

foreigner living with HIV/ AIDS on 2 May 1997 in a case concerning the United

Kingdom 123. It concerned a national from St. Kitts and Nevis who had been sentenced to

prison for drug trafficking. After he was released from prison his request for permission to

114 Article 7 of the law of 15 December 1980.115 paragraph 46, sub-para. 1, no. 5 of the law of 9 July 1990. 116 Article 27 of law 1975/91.117 Article 9 of the law of 28 March 1972.118 Article 15 of the decree of 26 June 1992.119 Article 40 of the law of 22 February 1991.120 Article 14 of the European Communities (Aliens) Regulations 1977.121 Bekanntmachung des Bayerischen Staatsministeriums des Inneren of 19.5.87, B3.122 Conseil national du Sida (France), Rapport suivi d’un avis du Conseil national du Sida sur la situation des personnes

atteintes par le VIH, de nationalité étrangère et en irrégularité de séjour, [Report followed by an opinion from theNational AIDS Council on the situation of irregular foreign residents who are HIV positive], December 1995.

123 ECHR, D. v. the United Kingdom, 2 May 1997. See Annexe II, 2, p. 249.


remain in the United Kingdom on humanitarian grounds was rejected. The person in

question was seriously ill with the disease and at the time of filing the application he was

not expected to survive more than one year. At the hearing before the Court, it was

declared that he was nearing the end of his life. He died after the Court’s decision.

77. The petitioner invoked the infringement of article 3 (prohibiting inhuman or

degrading treatment), article 8 (protecting privacy), article 2 (guaranteeing the right to

life) and article 13 (guaranteeing the right to a substantive appeal).

The British government did not dispute the fact that sending the person in question

back to his country of origin would reduce his life expectancy still further, but claimed

that it had never authorised the person in question to enter its territory and could

therefore not authorise him to remain there. The United Kingdom went on to argue that

the fact that the person in question had been imprisoned on its territory did not oblige it

to provide him with health care for the remainder of his life. The British government also

claimed that the life of the person in question was threatened by an incurable disease

from which he was suffering prior to being sentenced and not by the limited possibilities

of medical treatment in St. Kitts.

78. With regard to article 3 of the ECHR, the Court pointed out that, by virtue of a well-

established principle of international law and without prejudice to their undertakings in

international treaties, signatory states had the right to control the entry, residence and

removal of aliens. Nevertheless, the Court stated that ‘it is precisely for this reason that

the Court has repeatedly stressed in its line of authorities involving extradition, expulsion

or deportation of individuals to third countries that article 3 prohibits in absolute terms

torture or inhuman or degrading treatment or punishment and that its guarantees apply

irrespective of the reprehensible nature of the conduct of the person in question’ (pt. 47).

The Court notes that this principle was applied in cases where the risk of treatment in

contravention of article 3 was the result of intentional acts on the part of either the public

authorities of the country of destination or of organisations independent from the state

against which the authorities were not in a position to offer a person suitable protection.

Nevertheless, the Court deems that ‘it is not therefore prevented from scrutinising an

applicant’s claim under article 3 where the source of the risk of proscribed treatment in the

receiving country stems from factors which cannot engage either directly or indirectly the

responsibility of the public authorities of that country, or which, taken alone, do not in


themselves infringe the standards of that Article’ (pt. 49). The Court bases its argument on

the absolute nature of article 3 and states that it must rigorously examine all the

circumstances of the case, in particular the situation of the petitioner in the state expelling

him. The Court also states that it must ascertain if there is a real risk that the expulsion

infringes article 3 in view of the petitioner’s state of health at the time of its ruling.

The Court states that the petitioner was in the terminal phase of an incurable disease,

saying: ‘It is not disputed that his removal will hasten his death. There is a serious danger

that the conditions of adversity which await him in St. Kitts will further reduce his already

limited life expectancy and subject him to acute mental and physical suffering. Any medical

treatment which he might hope to receive there could not contend with the infections

which he may possibly contract on account of his lack of shelter and of a proper diet as well

as exposure to the health and sanitation problems which beset the population of St. Kitts.

While he may have a cousin in St. Kitts, no evidence has been adduced to show whether

this person would be willing to or capable of attending to the needs of a terminally ill man.

There is no evidence of any other form of moral or social support. Nor has it been shown

whether the applicant would be guaranteed a bed in either of the hospitals on the island

which, according to the Government, care for AIDS patients’ (pt. 52).

In view of the exceptional circumstances and the critical stage of the illness, the Court

concluded that article 3 had been infringed, even though, in principle, non-nationals who

have served a prison sentence and are subject to an expulsion order may not claim the right

to remain on the territory of a signatory state and benefit from medical care. The United

Kingdom’s argument that it was a case not of expulsion but of a refusal to grant residence, is

considered by the Court as an artificial construct because ‘Regardless of whether or not he

ever entered the United Kingdom in the technical sense, it is to be noted that he has been

physically present there and thus within the jurisdiction of the respondent state within the

meaning of article 1 of the Convention since 21 January 1993’.

79. The Court does not deem it necessary to examine whether article 2 was violated,

since the petitioner’s grievances based on article 2 cannot be fundamentally dissociated

from those based on article 3. When examining the violation of article 2, the

Commission stated in its report that ‘there is no precedent for treating the risk to life-

expectancy itself as falling within the scope of this provision’124.

80. With respect to article 8, which the petitioner claimed had been violated on the


grounds that the impact on his health was disproportionate to the legitimate aim being

pursued, i.e. to control immigration, the Court also concluded that the grievance did not

raise any separate issue.

81. Finally, after examining the grievance claiming a breach of article 13, the Court

decided that the English jurisdiction was competent to grant the petitioner the redress he

demanded and that ‘the fact that it had decided not to do so is not a pertinent

consideration since the substantive nature of the appeal stipulated in article 13 does not

depend on the certainty of a favourable result’. The Court pointed to its own

jurisprudence, in particular the Vilvarajah ruling.

Another action brought against France by a Congolese citizen living with AIDS was

submitted to the Court. Actually, in this case, the Court will consider that there is no

inhuman or degrading treatment if the exclusion order is not executed but is replaced by

a compulsory residence order. Here are the facts.

After being refused refugee status and after having been sentenced for drug trafficking,

the applicant was to be jailed and deported. After his liberation, he was subject to a

compulsory residence order because of his health, but the deportation order was not

formally cancelled. Carrying his plea to the European Court of Human Rights for inhuman

and degrading treatment, the applicant invoked that the fact that a compulsory residence

order had been made did not mean that he had lost the locus standi as a victim of inhuman

treatment, that the measure was not appropriate in view of the seriousness of his condition

as it necessitated reporting at regular intervals to the gendarmerie and the police and that

only a residence permit would give him full rights under the social welfare system.

The Court ‘accepts that the compulsory residence order […]does not signify that there

has been a change in the applicant’s situation since it merely rescinds a similar measure

imposed [before] in order to restore it with effect in a different département’ but ‘it

appears, however, that as regards article 3 of the Conventions the measure reflects,

through its continuity and duration, the French authorities’ intention to allow Mr BB to

receive the treatment his present condition requires and to guarantee him, for the time

being, the right to remain in France’125

. The Court notes that ‘the government indicated

124 European Commission of Human Rights, report of 15 October 1996, petition no. 30240/96, D. v. The UnitedKingdom.

125 ECHR, B.B. v. France, 7 September 1998, paragraph 37.


that they had not shown any intention of actually deporting Mr BB’. The Court sees that

‘as tantamount to an undertaking by the French Government not to expel the applicant

to his country of origin, the risk of potential violation therefore having ceased at least

until such time as any new factors emerge justifying a fresh examination of the case’.

Therefore the Court strikes the case out of the list but reserves the power to restore it to

the list if new circumstances arise justifying such a measure.

E. Free movement: proportionality (Luxembourg)82. The central criterion of proportionality can be applied to all three aspects of

movement (entry, residence, settlement). This criterion of proportionality has already

been widely introduced into the jurisprudence of the European Court of Justice in

relation to the free movement of people (article 48 EC, workers; article 52 EC,

settlement; article 59 EC, service provision). The main criteria defined in jurisprudence

to ascertain whether the means used are proportional to the aim being pursued are the

effectiveness and interchangeability of the said means. Are the means effective in

achieving the pursued aim and would it not be possible to substitute such means? In other

words, are there no alternative means for achieving the goal being pursued which are just

as effective as those used? Since this is a matter concerning persons living with

HIV/AIDS with relation to public health and their free movement, the issues it raises in

both national legislation and European law (supra, § 13) can be summarised as follows:

1. Are the means used (refusal of entry, refusal of residence, or expulsion) effective in

achieving the legitimate aim pursued (protecting public health)?

2. Even if the answer to the first question is affirmative, we need to examine whether

there are any alternative means for achieving the same aim without infringing, or

infringing to a lesser degree, one of the fundamental liberties of the people

concerned, in this case their freedom of movement.

The European Court of Justice has not yet been presented with a case concerning

the free movement of a person living with HIV/AIDS. However, it does have experience

of a case involving an HIV test in relation to employment (supra, § 13). The Court did in

fact use the criterion of proportionality between the legitimate aim pursued (effectiveness

in the job) and the means used (the HIV test) in relation to respect for privacy.

83. With regard to the movement of persons living with HIV/AIDS as it pertains to


human rights, jurisprudence is available from another legal authority, that of Strasbourg.

Readers should refer to the commentary on the ruling D. vs. the United Kingdom (§ 76)

and to the analysis of article 3 contained therein.

It is true that the wording of article 3 of the ECHR does not include the principle of

proportionality since it is not limited by a qualifying clause, as are the majority of articles

safeguarding other fundamental rights and liberties. It is this which makes the nature of

protection against inhuman and degrading treatment both absolute and unconditional.

Nonetheless, this same principle of proportionality indirectly guides the interpretation of

article 3 of the ECHR. Control is in a way internal to the protected right itself and no

longer external, regarding the way in which it is protected. Indeed, in order to ascertain

whether there is inhuman or degrading treatment, in other words, to gauge the inhuman

or degrading nature of the treatment, the legitimate aim pursued by such treatment must

implicitly be weighed against the inhuman or degrading nature of the means used or of

the consequences of the measure taken. Hence the European Court of Human Rights has

always considered that controlling entry to their territory and the expulsion of foreigners

as one of the prerogatives of Member States which are thereby pursuing a legitimate aim.

Thus, refusal of entry, or expulsion, are not in themselves considered to be inhuman or

degrading treatment. However, the Court considers it necessary to ascertain whether the

consequences of refusal of entry or expulsion indirectly result in inhuman or degrading

treatment. This might be the case if the person concerned is liable to suffer inhuman or

degrading treatment in the country to which he would be expelled. According to the

above-mentioned ruling, this might also be the case where the physical or moral integrity

of the person concerned is seriously at risk 126.

In other cases where a petitioner living with HIV/AIDS was not effectively expelled,

the Commission considered the appeal as inadmissible on the grounds that the petitioner

could not be termed a victim 127.

126 In the Soering case, the Court took solemnly into consideration the serious harm to the mental integrity ondeath row in the United States of a person who had been sentenced to die. Soering case (1989), ECR, Series A,no. 161; Cruz Varas case (1991), ECR, Series A, no. 201; Vilvarajah case (1991), ECR, Series A, no. 215;Chahal case (1996).

127 Petition no. 30011/96, Lenga v. France and petition no. 15291/89, Belbachir v. Belgium, infra §§ 98 and 148. Seealso B.B. v. France, supra § 81.

III Second conclusions (national laws in the Union)84. From this across-the-board approach it is possible to identify three factors which

characterise the way in which European Union Member States approach the free

movement of persons living with HIV/AIDS:

1. Nationality of the person: citizens of third countries are subject to more severe

restrictions than citizens of the Union 128.

2. Length of stay: restrictions on free movement mainly concern long-term residence 129.

3. Type of stay: restrictions generally concern applications for a residence permit,

student residence permit, work permit or asylum.

85. Regulatory sources of restrictions on free movement in the case of HIV/AIDS vary

from one Member State to another. Nevertheless, in no Union country do immigration

laws expressly mention HIV/AIDS 130. By contrast, decrees, notices, circulars and

instructions sometimes expressly refer to HIV/AIDS. Such texts concern nationals of

third countries. More generally, national legislation often provides for a medical

examination or requires a medical certificate. Such provisions may be used to impose

indirect restrictions on the free movement of people who are HIV-positive or suffering

from AIDS. It should be noted that some national measures have no legal foundation.

This also applies to measures taken by some states with regard to students.

86. The grounds for refusing the right of residence to persons living with HIV/AIDS are

sometimes only indirectly related to AIDS. This is the case for people who are jobless

because of AIDS and do not have adequate financial resources. In England, the High

Court 131 ruled that persons living with HIV/AIDS who were nationals of a European

128 A. HENDRIKS, ‘The right to freedom of movement and the (un)lawfulness of AIDS/HIV specific travelrestrictions from a European perspective’, Nordic Journal of International Law, p. 200.

129 Idem.130 However, it should be noted that in Luxembourg, the rule concerning the medical inspection of foreigners

expressly mentions HIV/AIDS to exclude authorisation for medical inspection.131 English High Court; Times Law report, 20 October 1995.

68 The Free Movement of Persons Living With AIDS – Part 2 European Union Member States


Union Member State did not have the right to shelter as laid down in English law

because they were jobless and were not officially resident. The direct basis of this decision

was not the existence of the disease but the lack of financial resources. Since the matter

concerned Union citizens, this decision was nevertheless overturned by the Court of

Appeal, saying that the people concerned did not need to have authorisation to stay.

Later decisions of the High Court awarded shelter and medical help to third country

nationals residing illegally, suffering from AIDS (infra, § 216b).

87. Clearly there is a lack of uniformity in the policies of European Union Member States

with regard to third country nationals living with HIV/AIDS. This appears to run

counter to the admittedly non-binding acts promulgated by Community institutions

stressing the need for non-conflicting policies with regard to Community citizens 132.

The different policies of European Union Member States concerning the free

movement of persons living with HIV/AIDS, in view of national legislation and the

trend in jurisprudence, could gradually be harmonised in three stages extending from the

short- to the long-term:

1. Short-term: Member States abstain from introducing new measures to restrict the

free movement of persons living with HIV/AIDS (standstill).

2. Medium-term: the principle of proportionality is applied in evaluating existing

measures: do they pursue a legitimate aim using effective means in the absence of

alternative means which would achieve the same aim?

3. Long-term: restrictions on the free movement of persons living with HIV/AIDS are

gradually removed.

This, particularly the second point, would involve medical science and

epidemiological considerations which it is not within our remit to examine. Nevertheless,

we take the liberty of identifying one question which needs to be answered in order to

clarify the legal treatment of the free movement of persons living with HIV/AIDS and

permit the gradual harmonisation of the legislation and practices of Member States: is the

restriction on the physical movement of persons proportionate to combatting AIDS? This

means applying two classic criteria:

132 See supra, Part I and Annexe 1.


1. Is restricting the free movement of persons an effective means for combating AIDS?

2. Do other means exist that are just as effective or more effective and are less

detrimental to free movement?

The answers to these questions from experts can be used to guide concrete actions

which could be taken both at Community level and by individual Member States. Firstly,

based on the answers to these questions the national and European jurisdictions (in

Luxembourg and in Strasbourg) could ascertain to what degree the legal provisions or acts

limiting the free movement of persons living with HIV/AIDS are or are not

disproportionate. Secondly, these same answers could be used to guide the actions of

Community and national institutions in eliminating restrictions on the free movement of

persons living with HIV/AIDS by proposing to supplement these ‘negative’ actions,

which impose an obligation on Member States to abstain from introducing any new

measures limiting the free movement of persons living with HIV/AIDS, with ‘positive’

actions which propose other measures for combatting the disease that respect individual

liberties.


IV Country-by-country examination of the legislation in European UnionMember StatesIntroduction88. This section IV details, on a country by country basis, the legislation, and where

possible the practices, relating to free movement which may concern persons living with

HIV/AIDS. The countries are listed in alphabetical order of their abbreviations. The

legislation is examined from two angles: firstly, the general legislation applying to all

foreigners, and secondly, the specific legislation applying to certain categories of

foreigners, in particular Union citizens, students and refugees. Nationals of developing

countries are concerned both by the measures applying to all foreigners and by measures

which specifically concern students or refugees.

Principal law texts are printed in Annexe II, 1 (p. 230) and a summary table is given

in Annexe II, 3 (p. 274).

Where possible a distinction is made, primarily for general legislation, between the

three stages of the free movement of people: entry, residence and expulsion.


1. (A) Austria1. Foreigners in general1.1. Entry

89. The authority responsible for issuing visas to third country nationals for entry to the

territory must take care to safeguard the public interests and public health (law of 17 June

1995 on foreigners, paragraph 7).

A visa must be refused if the person concerned has no health insurance or if his stay

would jeopardise public policy, order or safety (paragraph 10 of the law). This paragraph

does not expressly mention public health.

There is no screening upon entry to the territory (decree of 25 February 1987 by the

Ministry of Health and Environmental Protection concerning AIDS, the screening of

hospital patients, pre-recruitment screening by the local and regional authorities and the screening

of travellers on entry to Austria) 133.

The AIDS Committee of the Higher Board of Hygiene deemed that screening

travellers entering Austria was absurd and inadequate, stating that it should be rejected.

Consequently, the procedure in the aforementioned paragraph 7 of the Aliens’ Act

does not require any proof of not having contracted the virus, in compliance with the

provisions made at Community level 134.

1.2. Residence

90. Residence may be refused to a foreigner whose residence constitutes a threat to public

policy or public safety (paragraph 18 of the law). This provision covers people who are

already in Austria. Paragraph 18 of the law does not specifically mention public health.

Theoretically, this article could be used to refuse residence to persons living with

HIV/AIDS, but up to now it has not been used for this purpose 135.

Legislation concerning right of residence in Austria contains no provision for

refusing the right of residence to a foreigner who might constitute a threat to public

health as long as he fulfils all the other conditions required by law.

133 Information confirmed by the Ministry of Labour, Health and Social Affairs on 5 September 1997.134 Information provided by the Ministry of the Interior on 5 May 1997 and by the Ministry of Labour, Health and

Social Affairs on 5 September 1997.135 Information provided by AIDS -Hilfe Wien.


The Ministry of Labour, Health and Social Affairs states that there are no reasons

fixed for refusing a work permit for people infected with AIDS/HIV in the Aliens

Employment Law 136.

2. Special categories2.1. Union citizens

91. Foreigners entitled to entry without a visa, which chiefly concerns Union citizens,

can be refused entry during a border control if their residence jeopardises public policy,

order or safety (paragraph 32).

Like paragraph 10, paragraph 32 of the law does not expressly mention public health.

The fact that they are HIV-positive or suffering from AIDS has no influence on the

conditions of entry and residence of European Union citizens 137.

2.2. Refugees

92. No HIV test is imposed on refugees 138. Aliens are only tested for some highly

infectious diseases, for example tuberculosis 139.

2. (B) Belgium1. Foreigners in general1.1. Entry

93. There are no specific provisions with regard to AIDS for the entry of third country

nationals to the territory. General legislation allows for non-EC foreigners to be refused

entry to the territory they are considered by the Minister [of the Interior] or his

representative to be likely to jeopardise the peace, public policy or national security 140.

Contrary to article 43 relating to nationals of a Union Member State, or their

equivalent, public health is not expressly mentioned in relation to foreigners from third

countries. In view of the interpretation upheld by doctrine regarding Union citizens, even

136 Information provided by the Ministry of Labour, Health and Social Affairs on 5 September 1997.137 Information provided by AIDS-Hilfe Wien.138 Information provided by the Ministry of the Interior on 5 May 1997.139 Information provided by the Ministry of Labour, Health and Social Affairs on 5 September 1997.140 Law of 15 December 1980, article 3, paragraph 7.


where public health is cited as the reason for refusing entry in accordance with Directive

64/221, AIDS cannot be used as legal grounds for refusing entry to Belgian territory.

Neither can AIDS be used as grounds for refusing entry to the territory to foreigners

under common law, even though this right does not mention the protection of public

health. Such is the position adopted by the Aliens’ Office 141.

Practice confirms that there is no HIV test before or during border crossings and that

HIV/AIDS is not used as a reason for refusing entry to the territory.

94. The same provision relating to entry to the territory also refers to foreigners who are

‘notified’ as non-admissible to signatory states to the Convention on the Application of

the Schengen Agreement, concluded on 19 June 1990, either because their presence

‘jeopardises public policy or national security, or because they [are] subject to an

expulsion order which has been neither revoked nor suspended, and which contains a

ban on entry due to a failure to comply with national regulations relating to the entry or

residence of foreigners’ (article 3, paragraph 5). Public health is not expressly mentioned

and could not be integrated into the notion of public policy according to prevailing

doctrine (supra, § 29). Nevertheless, a foreigner living with HIV/AIDS could indirectly

be refused entry to Belgium on the grounds of the second condition: in cases where he has

been subject to an expulsion order in another Member State because of HIV/AIDS,

where national legislation includes this possibility. So, could a Turk living with

HIV/AIDS who has been expelled from Bavaria on these grounds be refused entry to

Belgium on the basis of a ministerial notice? The case could be examined from two

aspects. Firstly, is it possible to speak of ‘national regulations’ in the case of Bavaria?

Secondly, do the Belgian authorities have the power to judge the grounds which led to

expulsion from Bavaria and hence the classification in the Schengen information system

(supra, § 29) as a non-admissible or undesirable foreigner? If it is possible to examine the

grounds (the grounds being AIDS), such grounds could be examined by applying the

principle of proportionality. In a matter which did not concern AIDS, in this case a

refusal to recognise refugee status in Germany, a French jurisdiction ruled that the

141 Information provided by the Aliens’ Office on 10 April 1997.


classification in the Schengen information system (SIS) subsequent to a refusal should

not automatically lead to refusal of entry to French territory but that the grounds should

be examined 142.

1.2 Residence

95. Belgian law does not stipulate that the HIV test is necessary for nationals from third

countries to obtain a work or residence permit. However, article 2 of the Royal Decree of

6 November 1967 relating to the conditions for granting and withdrawing job authorisations and

work permits for workers of foreign nationality stipulates that where a worker does not

officially reside in Belgium or where he has been an official resident for less than two

years but is working there for the first time, the application for a work permit must be

accompanied by a medical certificate stating that, on the basis of a general check-up as

well as a serological examination and a lung X-ray, he is not suffering from any contagious

or communicable disease and that there is nothing to indicate that his state of health will

render him incapable of working in the near future.

The secretary of state for public health stated that screening for HIV antibodies was

not required for granting a work or residence permit 143. With regard to work permits, the

pre-printed medical form from the competent ministries includes a question relating to

the person’s serology, but this question normally refers to viral infections other than

HIV/AIDS. Nevertheless, general practitioners are not always familiar with legislation

regarding work permits and may include HIV screening in the serology. If the foreign

national is HIV-positive, the application is rejected by the administrative authorities on

the grounds that the person is ‘contagious’. With regard to residence permits, some third

country nationals would appear to have been subjected to a test through the Belgian

consulate after having applied for a visa or for family reunification, but this situation

would appear to be rare 144. According to the administrative authorities, where a medical

142 Tribunal administratif de Lyon, 6 May 1995, Journal des Procès, 1995, no. 293, p. 17, comment by A.M.SWARTENBROEKX, ‘Accords de Schengen, le juge doit garder un droit de contrôle’ [Schengen Agreements, thejudge must have a right of control].

143 J.P. LEGRAND, ‘Les personnes de nationalité étrangère et le sida’ [People of foreign nationality and AIDS], in: Lesida: un défi aux droits, actes [AIDS: a challenge to rights], Brussels, Bruylant, 1991, p. 759.

144 Information provided by the Foreigners’ Social Service (Service social des étrangers) on 3 April 1997.


certificate mentions the result of an HIV test, this is not a specific requirement from the

Aliens’ Office but stems from concurrent regulations, or even a spontaneous action. In a

situation such as this, the administrative authorities are content to verify compliance

with the requirements of the law of 15 December 1980 on Aliens’ residence. The use of

the test result as a criterion for examining the application for a visa or residence permit

would be patently illegal 145.

1.3. Expulsion

96. Article 7 of the Belgian Aliens’ Act states that the Minister can order a foreigner who

is not authorised or not allowed to reside more than three months or to settle in Belgium,

to leave the territory prior to a specified date if he is suffering from one of the illnesses or

infirmities listed in the annexe to the law (article 7, paragraph 7). The Minister of Justice

stated with regard to this provision that ‘if the illness or infirmity requires the foreigner to

be hospitalised, the latter will of course not be removed’ 146. Since the annexe to the law

makes no express mention of HIV/AIDS, the latter may not in principle be used as

grounds for removal 147. This is confirmed by the administrative authorities 148.

97. According to jurisprudence on safeguarding public policy which can be applied to

public health, an authority planning to expel or send back a foreigner who has clearly

settled in Belgium with his family, should ascertain whether, in a democratic society, the

necessity to safeguard public health through an expulsion order overrides the right to

family life guaranteed by article 8 of the ECHR 149. This is another application of the

principle of proportionality, in this case with regard to family life.

98. A Moroccan living with HIV/AIDS filed a procedure against Belgium in the

Strasbourg courts. In this case, the petitioner had been imprisoned in Belgium after

having been sentenced for drug trafficking and theft. Whilst he was in prison, he learned

that he had contracted the AIDS virus. Under a Royal Decree of 9 December 1986, the

petitioner was ordered to leave the territory within eight days of being released from

145 Information provided by the Aliens’ Office on 10 April 1997.146 D.P., Chambre, 1977-1978, no. 144/7, p. 74.147 M. TAVERNE, L’étranger et le droit belge [Foreigners and Belgian Law], 1991, p. 15.148 Information provided by the Aliens’ Office on 10 April 1997.149 C.E., 25 September 1986, RACE, 1986, nos. 26932 and 26933.


prison. He appealed to the Council of State for this decision to be repealed. A stay of

execution was also requested due to the petitioner’s state of health. The Council of State

rejected the application for a stay of execution on the grounds that the basis for the

application was flawed. Nevertheless, the deadline for leaving the territory was extended.

Subsequently, although the person concerned was ordered to leave the territory, he

remained in Belgium. Meanwhile, the Council of State rejected the appeal for the

decision to be revoked. The petitioner was again sentenced to prison for possession of

drugs, rebellion and battery. After his release when he had been issued with various orders

to leave the territory, a Royal Decree was adopted on 23 April 1991. In accordance with

this Royal Decree, execution of the Decree of December 1986 was suspended for a period

of three years during which the Decree of 9 December 1986 would be definitively

repealed if the conduct of the person concerned was beyond reproach.

An appeal was lodged under application of the ECHR. The petitioner pleaded

violation of article 3 due to his uncertainty over whether or not he would be able to

remain in Belgium. It was also claimed that article 2 was being violated on the grounds

that expulsion would immediately deprive the petitioner of any kind of treatment and

would shortly lead to his death. The petitioner also pleaded violation of article 8, since if

he were expelled he would be separated from his family which had settled in Belgium. The

person concerned claimed that his family ties had been strengthened as a result of his

serious health problems. Finally, the petitioner pleaded violation of article 14 guaranteeing

the principle of non-discrimination with respect to fundamental rights protected by the

convention. In this case, the petitioner felt that he was being discriminated against, not

only because he was being obliged to leave the country solely on the grounds of his

nationality, but also because the fact that he was suffering from AIDS was considered to be

an aggravating factor making his expulsion all the more necessary.

The Commission judged the appeal to be inadmissible. It decided that ‘the condition

of irreproachable conduct imposed upon the petitioner for the ruling to be repealed could

not be considered inordinate’ and that ‘the petitioner has never in fact been expelled from

Belgium, has continued to benefit from the care which his state of health requires and his

family ties have never been affected’. The Commission concluded that the petitioner

could not be described as a victim 150. Nevertheless, if a national from a third country were

150 Petition no. 15291/89, Belbachir v. Belgium.


indeed subject to expulsion, the appeal could be declared admissible 151.

Expulsion would then be subject to a case-by-case examination following the

principle of proportionality. It was ruled by a Brussels court that, even if article 3 of the

European Convention on Human Rights and article 23, 2° of the Belgian Constitution

give a right to health protection, ‘those articles cannot lead to the conclusion that a state

may never expel a foreigner living with AIDS; it all depends on the stage of the illness,

on the requirement for treatment and on the possibility for the patient to receive that

treatment in the country of origin’ 151b.

Similarly the Council of State suspended the deportment order served on a Tunisian

who was in a ‘very advanced stage’ of AIDS, on the grounds that ‘the genuineness of the

illness from which the petitioner has suffered for a number of years and the serious nature

of his state are established by many medical reports and certificates in the administrative

file. The various items in the file show that it is highly improbable that the drugs that the

petitioner is receiving in Belgium and without which he would be unable to survive, are

available in Tunisia.’ 151c


2.1.1. Entry

99. Union citizens may be refused entry to Belgium on public health grounds (article 43

of the Aliens’ Act of 15 December 1980). Only the diseases included in the annexe to

the law may justify refusal of entry. The list of diseases, which incorporates the list in

European Directive 64/221, does not expressly mention HIV/AIDS, but it does mention

the quarantinable diseases listed in the international Regulation of 25 May 1951,

tuberculosis, syphilis, as well as ‘other infectious or contagious parasitic diseases if in the

host country they are the subject of provisions to protect nationals’. According to Belgian

doctrine, the fact of suffering from AIDS or being HIV-positive may not, in principle,

justify refusal of entry or residence since ‘AIDS is neither a quarantinable disease nor an

151 See E. Court H.R., 2 May 1997, D. v. The United Kingdom, supra, § 76.151b Civ. Bruxelles (réf.), 18 September 1997, no. 97/1057/C, Mosikwa v. Belgium, non published. Quoted in F.

MOTULSKY and M. BOBRUSHKIN, ‘Le séjour des étrangers en Belgique et le contentieux médical’ [Residenceof aliens in Belgium and medical conflicts], Journal des Tribunaux, 1998, p. 283.

151c Council of State, 19 Mei 1998, M. v. Belgian State, no. 73790, unpublished.


infectious disease listed in paragraph 4 of the annexe. In fact, Belgian nationals suffering

from AIDS are not subject to protection measures’152. This conclusion is confirmed by the

administrative authorities 153.

With regard to article 43 of the Aliens’ Act covering Union citizens, it should be

noted that Belgian law considers the family of Union citizens as Union citizens, in

accordance with Community law, but also the family of a Belgian national, in accordance

with national law, in order to avoid reverse discrimination against the family of a Belgian

national. Consequently, the wife of a Belgian national from Togo benefits from the same

protection as Union citizens 154.

2.1.2. Residence

100. Article 43 of the Aliens’ Act applies to the residence of Union citizens in Belgium.

Refer to the comments on this provision regarding the entry of Community nationals (§ 99).

2.2. Students

101. By virtue of article 58 of the law of 15 December 1980, foreigners wishing to study in

Belgium must supply certain documents, including a medical certificate stating that they

are not suffering from any of the diseases or infirmities listed in the annexe. The annexe

does not expressly mention HIV/AIDS.

In June 1985, the Ministry of Foreign Affairs planned to subject applicant student

grant-holders from central Africa to a compulsory HIV test. The Belgian Medical

Association (Conseil national de l’ordre des médecins) considered that, in the absence of

compulsory legislation on the matter, such a test could only be carried out with the

consent of the people concerned. In July 1985, directives from the secretary of state for

Cooperation and Development were issued stating that the physical examination of

third-world applicant student grant-holders would include a blood analysis and screening

for HIV antibodies. On 24 October 1986, the Ministerial Committee for Foreign Affairs

stated that applicant student grant-holders should be submitted to this examination in

their country of origin. Should the result be positive or should they refuse to submit to

152 J. P. LEGRAND, ‘Les personnes de nationalité étrangère et le sida’, in Le sida: un défi aux droits, actes, Brussels,Bruylant, 1991 and M. TAVERNE, ‘Statut administratif’ [Administrative Status], in L’étranger et le droit belge,Bruges, La Charte, 1991, p. 15, footnote 74.

153 Information provided by the Aliens’ Office on 10 April 1997.154 ECJ, 18 October 1990, ECR, C-297/88 and 197/89, Dzodzi, ECR, 3763.


the test, students would not be granted authorisation. Student grant-holders who were

already resident in Belgium would also have to submit to an annual test. Seropositivity or

a refusal to submit to the test would result in the student being obliged to leave Belgium.

The withdrawal of the grant would be notified to the country of origin. At the end of

March 1987, the secretary of state for public health allowed student grant-holders to

remain in Belgium to continue their studies.

The measures taken by Belgium against certain categories of students have been the

subject of much criticism.

It was argued that the HIV/AIDS infection did not figure in the annexe to the

Aliens’ Act of 15 December 1980, with the result that the measures had no basis in law.

It was also maintained that disclosing the test result to the organisation awarding grants,

the General Development Cooperation Agency (Agence générale de coopération au

développement – A.G.C.D.), as well as to the country of origin, would be a violation of

medical confidentiality. Others held that the measure was tantamount to a forced medical

intervention and was an invasion of students’ privacy. Finally, it was claimed that the

obligation to submit to a test could be motivated by financial considerations, aimed at

avoiding having to pay medical costs, which made it an ineffective and discriminatory

measure 155.

According to the administrative authorities, no decision has ever been taken to

expel an HIV-positive student 156. The test is now voluntary, in that it is offered to

students upon their arrival 157.

2.3. Refugees

102. Legislation contains no specific provisions concerning public health with respect to

refugees. It appears that systematic screening was practised in the past but that this

measure is no longer in force. However, doctors in reception centres apparently

frequently carry out HIV screening on asylum seekers who are said to submit to it without

necessarily understanding the meaning of the terms ‘HIV’ or ‘AIDS’. The Public Social

155 See in particular: M. VINCINEAU (editor) Le sida, un défi aux droits, actes, Brussels, Bruylant, 1991, 766 and L.THIRY, ‘Les boursiers et le sida, accompagner ou punir?’ [Student grant-holders and AIDS, help and support orpunishment?] Journal des Procès, 1987, no. 103.

156 Information provided by the Foreigners’ Social Service on 8 April 1997.157 Information provided by the AGCD.


Welfare Centre of the city of Liège demands that asylum-seekers receiving welfare benefit

should receive a full medical examination every six months, including HIV screening.

The implicit sanction should they refuse to submit to the medical examination is the

suspension of welfare benefits 158.

Some refugees, fearing that seropositivity will be used to refuse them the right of

residence, renounce medical care and welfare benefits 159.

Replying in the Parliament (Sénat) to an oral question on 20 February 1986, the

secretary of state for public health declared that ‘the authorities, in application of the law

of 15 December 1980, must check whether a political refugee is suffering from one of the

diseases listed in the annexe to the law. If the examination proves positive, the person

concerned must leave the territory’ 160. It was pointed out that article 32 of the Geneva

Convention stipulates that a refugee may only be expelled for reasons of national security

and public policy, not on the grounds of public health. Likewise, the Belgian Aliens’ Act

states that a refugee may be refused residence for reasons of public policy and national

security but not on the grounds of public health (article 52a).

In answer to a parliamentary question, it was said that ‘no measures apply to refugees

other than those which apply to any HIV-positive person residing in Belgium’ 161.

According to the Aliens’ Office, asylum-seekers are not refused entry or residence

because of HIV/AIDS. On the contrary, they claim that there is positive discrimination

towards certain patients in the terminal stages of their illness. In a very serious medical

situation, for instance, it would be possible for a person who was not in a state to be

moved to have his residence regularised. When an illegal foreigner or non-suited asylum

seeker is still in a state to be moved, he is normally repatriated but receives medicine to

take on his return 162.

158 Information provided by the Foreigners’ Social Service on 8 April 1997.159 M. LOUHENAPESSY, ‘Care issues and migrants’, in M. HAOUR-KNIPE and R. RECTOR (Eds.) Crossing

borders, migration, ethnicity and AIDS, Taylor & Francis, London, 1996.160 C.R.A., Senate, 1985-86, 20 February 1986, p. 177.161 Bull. Quest. et Rép. Senat, 1986-87, no. 25, 31 March 1987.162 Information provided by the Aliens’ Office on 10 April 1997.


3. (D) Germany1. Foreigners in general1.1. Entry

103. The Aliens’ Act (Auslandergesetz) of 9 July 1990 (BGBl, p. 1354) in its 28 October

1994 version (BGBl, I, p. 3186) contains no specific provision concerning a medical

examination prior to entry to the territory. This means that the federal authorities cannot

make authorisation to enter the territory conditional upon a medical examination.

A circular of 21 April 1987 from the Minister of the Interior of the FRG previously

authorised the border police to refuse entry to the territory to foreigners suspected of

suffering from AIDS 163. This circular is no longer in application 164.

1.2. Residence

104. By virtue of the Aliens’ Act of 9 July 1990 165, right of residence may only be granted

if the foreigner’s presence does not affect Germany’s interests. Some people infer from this

that the law prohibits granting an HIV-positive person the right of residence except

where this person has very strong ties with Germany 166. All aspects of public interest,

including public health, are considered as being interests of the Germany 167.

Residence permits may also be refused if the foreigner is suffering from a contagious

disease which has to be declared, in accordance with paragraph 3, sub-paragraphs 1 and 2

of the federal law on epidemics (Bundesseuchengesetz). If there is reason to believe that this

is the case, the authority must request a medical certificate, except where the foreigner is

entitled to receive a residence permit or have one extended. The HIV infection is not

included in paragraph 3 of the law on epidemics, but is considered as a contagious disease

under the terms of this law. There are no regulations for the application of HIV screening,

and in practice the delivery of a residence permit does not normally appear to depend on a

prior medical examination, except in the case of Bavaria 168.

163 Le Monde, 13 May 1987.164 Information provided by Assistant Public Prosecutor Bruns on 29 March 1997.165 Article 7, paragraph 2, paragraph 3.166 W. ZITZELSBERGER, ‘Ausländerrechtliche Aspekte der Aids-Problematik’ [Foreign law aspect of the AIDS

Problem], Aids-Forschung (AIFO), 1988, p. 49.167 Information provided by the Ministry of the Interior on 21 March 1997.168 Information provided by the Ministry of the Interior on 21 March 1997.


105. It is the Länder that establish the conditions for the medical certificate to be

provided by foreigners requesting the right of residence. The Länder can decide whether

this certificate should contain information regarding possible seropositivity.

106. In a decision dated 30 July 1987, the higher administrative court of the Land of

Baden-Württemberg refused to consider that seropositivity could constitute a threat to

public health and serve as grounds for refusing to extend the right of residence 169.

107. The authorities of the Land of Bavaria have taken different measures against

foreigners living with HIV/AIDS, aimed at limiting their opportunity to reside

in Bavaria.

Foreigners requesting a permit to stay more than three months in Bavaria

are subjected to screening 170. There may be exceptions for people with special links

with Germany, such as those married to German nationals. In this case, a residence

permit is granted provided that the foreigners give an assurance that they will not

spread the disease.

Where an HIV-positive foreigner is in possession of a residence permit, this permit

may be rescinded at the discretion of the immigration authorities. They mainly take into

account the foreigner’s ties with Germany, family ties, and the period of residence.

The European Commission reacted to the measures taken by the Land of Bavaria

saying that they contravened the principle of the free movement of persons, as well as the

conclusions of the Council and Member States governments representatives at the

Council meeting of 15 May 1987. The Commission did not consider itself to have the

legal means to intervene directly with the Land of Bavaria 171. It nevertheless pointed out

that the ad hoc group was responsible for proposing a procedure for providing mutual

information at Community level concerning any administrative and legal initiatives

planned or adopted by Member States.

169 VGH Mannheim, 30.7.1987-11 S 805/87, Neue Juristische Wochenschrift, 1987, Heft 46, p. 2953-2954.170 Bekanntmachung des Bayerischen Staatsministeriums des Inneren, no. 1A2-2081.10 and no. 1E/1A/1C-5280-8.2/7/87

of 19 May 1987.171 Written question no. 708/87 from Mr Konstantinos Filinis to the Commission of the European Communities, OJ,

C 283, 7 November 1988; written question no. 663/87 from Mrs Raymonde Dury to the Commission of theEuropean Communities, OJ, C 195, 25 July 1988; ‘Réaction de la Commission aux menaces à la libre circulationdans la CEE’, The ACP-EEC Courrier, September-October, 1987, p. XII.


1.3. Expulsion

108. Paragraph 46, sub-paragraph 5 of the Aliens’ Act states that a person can be expelled

if he endangers public health through his conduct. Often the decision is based on the

personality and social life of the person concerned.

Expulsion does not depend solely on suffering from a contagious disease that must be

declared or on suffering from a venereal disease, under the terms of the federal law on

epidemics, but also on whether the foreigner’s conduct constitutes a threat to public

health, in that the person takes no precautions to avoid spreading the disease or fails to

respect the necessary protection measures. These grounds for expulsion are normally

examined after an explanatory memorandum has been issued by the Public Hygiene

Department 172.

109. In a judgment on 2 October 1985, the Saarland administrative court upheld

seropositivity as grounds for expulsion.

110. In Bavaria, the aforesaid notice expressly provides that persons living with

HIV/AIDS may be expelled. Holders of a residence permit who may be HIV-positive are

subjected to a test and should they prove to be HIV-positive their permission to stay may

be withdrawn 173. Furthermore, it provides that foreigners practising prostitution or taking

drugs may be expelled even if they are not HIV-positive 174.


111. The Aliens’ Act only applies to Union citizens if European law does not contain a

contrary provision.

In accordance with paragraph 12, sub-paragraph 6 of the law on EEC residence

(Aufenthaltsgesetz/EWG), the free movement of a Union citizen may only be restricted if

172 Information provided by the Ministry of the Interior on 21 March 1997.173 Bekanntmachung des Bayerischen Staatsministeriums des Inneren of 19.5.1987, B3.174 Bekanntmachung des Bayerischen Staatsministeriums des Inneren, 19.5.1987 no. IE/1A/1C-5280-8.2/7/87.


he is suffering from a disease that must be declared by virtue of the federal law on

epidemics (Bundesseuchengesetz). This does not concern HIV/AIDS 175.

The issue of the entry and residence of Union citizens living with HIV/AIDS does

not appear to have arisen in practice, since no ruling has ever been made on the subject.

Even though article 4 of Directive 64/221 and paragraph 12, sub-paragraph 6 of the law

on EEC residence do in theory allow restrictions on free movement on public health

grounds, this does not apply to Union citizens who might be affected by the virus. In any

case, in accordance with the European directive, it is not permitted to refuse to extend, or

to withdraw a residence permit in cases where the virus appears after the person

concerned has received a first residence permit 176.

The obligation to undergo an HIV test imposed by Bavaria on foreigners requesting

a residence permit does not apply to Union citizens or nationals from the following

countries: Andorra, Iceland, Liechtenstein, Malta, Monaco, San Marino, Switzerland

and Norway.

2.3. Refugees

112. Paragraph 48 of the Aliens’ Act provides special protection against expulsion. Under

this provision, a foreigner holding a residence permit in accordance with paragraph 32

may be expelled only for serious reasons that jeopardise public security and public policy,

although public health is not mentioned. Paragraph 32 concerns refugees fleeing from war

or civil war.

113. On the basis of the aforementioned notice, in Bavaria, refugees who are living with

HIV/AIDS may be refused the right of asylum.

175 Information provided by Assistant Public Prosecutor Bruns on 29 March 1997.176 Information provided by the Ministry of the Interior on 27 May 1997.


4. (DK) Denmark1. Foreigners in general1.1. Entry

114. The Danish Aliens’ Act (Act no. 894 of 27 October 1994, amended in 1995)

provides that entry may be refused if health grounds indicate that the alien should not be

allowed to stay in Denmark (article 28).

Health inspections are authorised by virtue of the ‘Epidemiological Diseases Act’ and

of legislation on foreigners. However, there is widespread agreement that this type of

measure is not necessary in the case of HIV/AIDS because of the way the virus is

transmitted 177.

Generally speaking, nobody in Denmark can be obliged to undergo a test. In fact, the

Danish Parliament considered that the fight against AIDS should be based on an

individual’s right to make his own decisions.

1.2. Residence

115. Article 10 of the law states that in cases where a foreigner must be considered a

threat to his entourage due to a contagious disease, he may be issued with a residence

permit only if particular reasons make this appropriate.

There is no jurisprudence relating to the application of article 10 to persons living

with HIV/AIDS, which is logical since the HIV test is not compulsory and consequently

the authorities are unaware of any seropositivity. Even assuming that the authorities were

aware that the foreigner was suffering from HIV/AIDS, it is not very likely that he would

be refused a residence permit on the grounds that he would constitute a danger or a threat

to his entourage 178.

Article 9, paragraph 3 of the Aliens’ Act stipulates that a residence permit may be

granted for humanitarian reasons where the person is not recognised as a refugee. On this

basis, a residence permit may be granted to a person suffering from a serious disease such

as HIV/AIDS. This principle would appear to be illustrated by the Minister of the

Interior’s decision of 20 May 1993 179.

177 A. SNARE, ‘The legal treatment of AIDS in Denmark’, AIDS and Human rights, an international perspective,Copenhagen, Akademisk Forlag, 1988, p. 37.

178 Information provided by E. Brinch Jorgensen on 5 May 1997.179 Indenrigsministeriets Nyhedsvref, 20 May 1993; Vdlaendingeretten, DJØF-publishing, 1995, p. 107.


A 28-year old Ugandan national who had requested refugee status, was refused in

March 1993. He then asked for a residence permit on humanitarian grounds based on

article 9 of the Aliens’ Act. A medical examination had revealed that the immune

defence system of the person concerned was moderately lowered without the appearance

of signs associated with the HIV/AIDS infection. However, the medical examination

showed that there was a risk that the symptoms of HIV and AIDS would appear in later

years. The foreigner’s request was rejected on the grounds that he displayed no symptoms

of HIV/AIDS and that only a moderate lowering of the immune system had been

detected. When this decision was announced, the Minister of the Interior stated that the

administrative practice should not be allowed to develop in such a way that any foreigner

suffering from the virus would be able to obtain a residence permit for humanitarian

reasons, adding that an individual assessment would be required on a case-by-case basis.

An analysis of this decision appears to indicate that foreigners presenting symptoms

of HIV or AIDS, who were refused refugee status on the basis of article 7, could be

granted a residence permit for humanitarian reasons.

1.3. Expulsion

116. The Aliens’ Act does not provide for expulsion on public health grounds. Expulsion

is only allowed in cases of a threat to national security, a criminal sentence, alcohol

abuse, drug taking or not having a residence permit.

Furthermore, article 26 of the law states that the expulsion decision must have

regard not only to ties with Denmark, but also other elements, including the state of

health of the person concerned.

With regard to the application of article 26, the foreigner’s state of health is given

special consideration if he is unable to obtain medical care in his country of origin 180.

Even where the foreigner is under an expulsion order because he has committed a

criminal offence, his situation may be re-examined if a new element arises, such as the

appearance of a serious illness (article 50 of the Aliens’ Act).

It was ruled that a person who had been sentenced to prison for one-and-a-half years

and had become depressive whilst in prison, should not be expelled. In fact, expulsion

180 Information provided by E. Brinch Jorgensen on 5 May 1997.


could have affected the person’s state of health, especially as a result of being separated

from the home environment 181.

It would therefore seem that HIV/AIDS can serve as grounds to justify the

application of articles 26 and 50 to avoid expulsion.

2. Special categories2.1. Refugees

117. There is no compulsory test for refugees. It is highly unlikely that right of asylum could

be refused for reasons associated with HIV/AIDS 182. A foreigner living with HIV/AIDS

who is refused refugee status can request the right of residence on humanitarian grounds 183.

5. (E) Spain1. Foreigners in general1.1. Entry

118. Article 11 of the law of 1 July 1985 on the rights and liberties of foreigners in Spain

stipulates that foreigners must submit to the tests demanded for public health reasons by

the health service at border crossing points. The Ministry of the Interior, in agreement

with the Ministry of Health and Consumer Affairs, decides which cases require a

certificate proving that the person is not suffering from a disease endangering public

health. The certificate is issued in the country of origin by the medical services appointed

under consular regulations. If this is not the case, the foreigner must undergo an

examination by the Spanish services on arrival 184.

119. Article 8 of the implementing Regulation of 23 February 1996 (concerning third

country nationals and applying to Union citizens only on a subsidiary basis) provides

that, in the case of an epidemic, borders may be closed at the request of the Minister of

the Interior and of Health.

120. No restriction on entry is expressly provided for persons living with HIV/AIDS 185.

181 Judgment in UfR 1990.719 H.182 Information provided by E. Brinch Jorgensen on 5 May 1997.183 Supra, § 115.184 Jose Maria ESPINAR VICENTE, La nacionalidad y la extranjeria en el sistema juridico español [Nationality and

immigration in the Spanish legal system], Madrid, Civitas, 1994, 251.185 Information provided by the Health Ministry on 19 February 1997.


1.2. Residence

121. Article 27 of the Regulation of 23 February 1996 applying to third country nationals

provides that in order to obtain a residence permit a medical certificate must be presented

in compliance with article 37 of the regulation. Article 37 entitled ‘health requirements’

states that foreigners entering Spain must provide a medical certificate or submit to a

medical examination in order to check that they are not suffering from one of the following:

■ a quarantinable disease listed in the international health regulations

■ drug dependency or a mental illness endangering public policy or public safety

■ an infectious or parasitic disease indicated by the Health Minister.

A foreigner requesting a residence permit must prove that he possesses the financial

means, in particular to cover health care for himself and his family (article 28 of the

Regulation of 23 February 1996).

Article 32 of the regulation states that no residence permit will be granted if the

foreigner’s presence is a threat to public policy, public safety or public health.

A certificate of seronegativity is not required by the local authorities for obtaining a

residence permit 186.

The order of 11 April 1996 on exemptions regarding visas accepts as grounds for

exemption the fact that a foreigner is suffering from a disease requiring medical care and

preventing him from returning to his country to obtain a visa. This provision could be

applied to persons living with HIV/AIDS 187.

122. The implementing Regulation of 23 February 1996 states that a medical certificate

must be provided in order to obtain a residence or work permit (articles 56 and 87), in

compliance with the aforementioned article 37.

In principle a certificate of seronegativity is not necessary for obtaining a work

permit 188. Article 22 of Law 31/1995 of 8 November on the prevention of occupational risks

186 Information provided by the Health Ministry on 19 February 1997.187 Information provided by the Health Ministry on 19 February 1997.188 Information provided by the Health Ministry on 19 February 1997.


states that a medical examination requires the consent of the worker. Exceptions may be

made, provided that workers’ representatives are notified and that the means used are the

least prejudicial possible and proportionate to the risk. In any case, the right to privacy,

dignity and confidentiality must be respected.

123. Article 9 of the implementing Regulation of 23 February 1996 states that

foreigners are entitled to benefit from the services organised by the public authorities

for protecting health.

1.3. Expulsion

124. The Spanish Aliens’ Act does not provide for expulsion on public health grounds.

However, article 21, paragraph 4 of this law states that in exceptional cases, a reasoned

decision by the Minister of the Interior may prevent the foreigner from leaving the

country if this measure is required to protect national security, public policy or public

health. Article 121 of the implementing Regulation of 23 February 1996 relating to bans

on leaving the country, states that a foreigner who has a contagious disease may be

forbidden to leave the territory if, by virtue of Spanish legislation and international

conventions, this disease requires his immobilisation or confinement. The ban on leaving

the country on public health grounds is an international cooperation measure to prevent

disease spreading to other countries. This prohibition also reflects a concern to protect

the country itself, since it allows the necessary steps to be taken to control the spread of

the epidemic and analyse the situation 189. It would appear that there has never been an

expulsion on the grounds of HIV/AIDS and that this disease has never been used to

justify a ban on leaving the country 190.

189 Jose Maria ESPINAR VICENTE, op. cit., p. 300.190 Information provided by the Health Ministry on 19 February 1997.



2.1.1. Entry

125. In the case of Union citizens, Royal Decree 766/1992 of 26 June on the entry and

residence in Spain of nationals from European Community Member States, amended by Royal

Decree 737/1995 of 5 May states that public health may be used as grounds for refusing

entry. The diseases mentioned are those listed in Directive 64/221 (article 15 of the

decree). The Royal Decree also applies, irrespective of nationality, to members of the

family of both Spanish nationals and Union citizens (article 2 of the decree).

2.1.2. Residence

126. Union citizens may be refused residence on public health grounds, by virtue of

article 15 of Royal Decree 766/1992. The diseases referred to in this article are based on

those in Directive 64/221.

2.1.3. Expulsion

127. Article 15 of Royal Decree 1992/766 states that Union citizens may be expelled if

they pose a threat to public health. The diseases mentioned are those figuring in the

annexe to Directive 64/221.

2.2. Students

128. There is no systematic screening of students 191. Nevertheless, African students at the

University of Madrid and Uruguayans have been obliged to submit to a screening test 192.

2.3. Refugees

129. A medical examination is carried out on refugees.

In 1991, the FASE (Spanish association) intervened in favour of asylum-seekers,

especially those from Africa, whom the authorities had asked to be screened for HIV. At a

meeting with this association, the Minister of the Interior declared that HIV tests were

191 Information provided by the Health Ministry on 19 February 1997.192 Comite ciudadano anti-sida (Anti-AIDS Citizens’ Committee), Informe sobre la problemática sanitaria del sida (Report

on the AIDS health problem), April 1991, in Étude comparative sur la discrimination à l’encontre des séropositifs etmalades du sida, Strasbourg, 1993, 108.


neither automatically offered nor carried out on potential refugees 193. This policy is

still in force 194.

The fact that treatment cannot be continued in the country of origin sometimes

serves as grounds for granting the right of asylum 195.

6. (F) France1. Foreigners in general1.1. Entry

130. Article 5 of the Order of 2 November 1945 relating to the conditions of entry and

residence of foreigners in France, as amended, states that entry to French territory may be

refused to any foreigner whose presence might pose a threat to public policy or who is

either under a ban on entering the territory or under an expulsion order. Article 5 does

not expressly mention public health. Nevertheless the wording of the provision relating

to Union citizens (infra, § 150) implies that certain diseases or infirmities may endanger

‘public policy’.

131. No screening is practised upon entry to France. In 1987, the President of the French

Republic declared that a sense of ethics should make it possible to preserve the humanist

values threatened by the determination of certain states to introduce systematic screening

and a border inspection 196.

132. The order on foreigners (article 22, II, letter a) states that a foreigner may be sent

back to the border if he fails to fulfil the conditions set out in article 5 of the Convention

on the Application of the Schengen Agreements or if he cannot prove that he entered

France in accordance with articles 19 and 20 of the Convention.

133. Screening is compulsory for French military personnel returning from certain

African countries and from French Guyana.

193 Idem.194 Information provided by the Health Ministry on 19 February 1997.195 Information provided by la Comisión Española de Ayuda al Refugiado [Spanish Commission for Aid to Refugees] on

22 January 1997.196 Le Monde, 11 June 1987.


1.2. Residence

134. France’s policy with regard to residence is not to impose a health inspection for

tourist or business trips but only for foreigners staying for some time in France, i.e.

foreigners obtaining a permit to stay in France for more than three months. According to

G. Moreau, Director of the population and migration department, this medical

examination is used merely as a preventive measure. During this medical examination,

information is allegedly provided on the benefits of screening 197.

The delivery of a so-called ‘short stay’ tourist visa (less than three months) is not

subject to medical conditions and no screening is required 198.

135. Foreigners subject to the order of 2 November 1945, refugees and members of a

refugee’s family, and the family members of a stateless person requesting a French

residence permit must undergo a medical examination which is carried out abroad by a

doctor approved by the French Embassy. However, for certain categories of foreigners

(students or self-employed workers) the medical examination takes place in France. An

HIV screening test does not form part of compulsory examinations. Seropositivity is not

considered to be a sufficient medical reason for refusing a residence permit 199.

136. Decree no. 46-1574 of 30 June 1946 (amended by decree no. 94-768) calls for a

medical certificate in a number of cases.

Article 7 of the 1946 decree requires a medical certificate for a foreigner requesting a

temporary residence card. The requirement for a medical certificate also appears in article

11 of the decree for applying the provisions of article 15 (paragraph 1 to 5) of the order of

2 November 1945 on foreigners concerning the automatic delivery of residence cards. The

conditions for issuing a medical certificate were specified by ministerial order 200.

197 G. MOREAU, ‘La politique française en matière d’immigration et de sida’ [France’s policy regarding immigrationand AIDS], Sida, sociétés et populations, John Libbey Eurotext, Montrouge, 1996, p. 235.

198 Information extracted from the document published by Aides, entitled ‘L’entrée sur le territoire français’ [Entry intoFrench territory].

199 Information extracted from the document published by Aides, entitled ‘L’entrée sur le territoire français’ .200 A.M., 30 July 1986, J.O., 24 August 1986.

François JULIEN-LAFERRIÈRE, ‘Condition des étrangers en France’ [Condition of foreigners in France],Jurisclasseur Droit international, fasc. 524, no. 58.


137. By virtue of the order of 7 November 1994 concerning the health control of foreigners

authorised to stay in France, third country nationals must submit to a general clinical

examination carried out by a doctor. Article 4 of the order states that foreigners do not

fulfil the health conditions if they are suffering from plague, cholera, yellow fever, active

pulmonary tuberculosis, drug addiction or a mental disorder. Since HIV/AIDS is not

mentioned in the order of 7 November 1994, it should not constitute grounds for refusing

the right of residence 201.

138. The circular of 8 December 1987 concerning the health inspection of foreigners wishing to

stay in France does refer to HIV/AIDS. It stipulates that only the presence of clinical signs

or a request by the person concerned can lead to screening for HIV antibodies. The

existence of positive serology in the absence of clinical signs should not constitute

grounds for refusing authorisation to reside in France.

Some people claim that in this circular ‘freedom to come and go is respected, since

there is no screening at borders and the existence of positive serology does not constitute

grounds for refusing a residence permit’ 202. For others, the circular could create a false

impression of protection because an a contrario interpretation may mean that

seropositivity does constitute grounds for refusing the right of residence where clinical

signs are present. Could a simple fever be interpreted as a clinical sign justifying screening

and refusal of the right of residence 203?

139. With regard to family reunification, article 29 of the 1945 order states that this right

may be refused for public health reasons. Family members must not be suffering from a

disease or infirmity that is likely to jeopardise public health or safety; their presence must

not constitute a threat to public policy. These conditions are not required of certain

foreigners covered by a treaty: European citizens, Central Africa, Gabon, Burkina-Faso,

Mauritania and Togo 204.

140. It was decided that the refusal to issue a residence permit to a foreigner suffering

201 AIDES, Droit et sida Guide pratique, [Law and AIDS, Practical Guide], 3rd ed., Paris, LGDJ, 1996, p. 71.202 J. FOYER and L. KHAIAT, ‘Droit et sida: la situation française’ [Law and AIDS: the French Situation], Droit et

sida, comparaison internationale, Paris, CNRS Editions, 1994, p. 255.203 P. VAN OVERBEEK, ‘AIDS/HIV infection and the free movement of persons within the European Community’,

Comm.M.L.R., 1990, p. 91.204 P. MAYER, Droit international privé [International private law], 4th ed., Paris, Montchrestien, 1991, 578.


from serious health problems could be flawed by a manifest error of judgment 205. This

case concerned a seriously ill foreign student who, because of his illness, had postponed

completing the formalities required to renew his residence card. This case did not directly

concern HIV/AIDS but the same reasoning could be applied to persons living with

HIV/AIDS.

141. Foreigners other than tourists residing in France have the same rights to health care

as French nationals.

A circular of 4 March 1997, drawn up by the General Health Directorate, the Social

Security Department, the Hospitals Department and the Social Services Department,

defines the prescription and treatment procedures for new AIDS therapies 206. This

circular states that ‘all patients must be taken in charge by public hospital service,

irrespective of their administrative situation’ (point 3.4).

The circular also contains the following provision: ‘medical care in a health care

institution is open in particular to foreign nationals residing in France without an official

residence permit. It allows for care dispensed by health care institutions, including

outpatient clinics, to be taken in charge. Also taken in charge are any medicinal products

prescribed on this occasion […]. Furthermore, foreign nationals who establish that they

have the required permit to reside officially in France (including cases where they have

been resident in France for less than three months), as well as any persons who can prove

their uninterrupted residence in mainland France for over three years (even without

a legal residence permit), may also be means-tested for receiving home health care’

(point 3.4.2.1.).

1.3. Expulsion

142. French legislation provides for expulsion, not on the grounds of public health, but ‘if

the presence of a foreigner on French territory poses a serious threat to public policy’ 207.

143. The medical situation does not in itself shield a foreigner from a measure to remove

205 C.E., 14 February 1996, D., 1997, Cahier 5, summaries commented by François JULIEN-LAFERRIÈRE, p. 38.206 Framework circular DGS/DSS/DH/DAS no. 97/166, relating to the new system for exemptions and people with the

antiretrovirus, introduced on 1 January 1997.207 Article 23 of the amended Order of 2 November 1945.

]


him from the territory. Nevertheless, a foreigner can invoke humanitarian grounds in

cases where expulsion would have exceptionally serious consequences on his state of

health or on his family life. Authorisation to reside in France may be granted under such

circumstances. This is based on article 25, paragraph 8 of the order of 2 November 1945

concerning ‘a foreigner habitually residing in France who is suffering from a serious illness

requiring medical treatment, the lack of which could result in exceptionally severe

consequences, provided that he cannot effectively pursue an appropriate course of

treatment in the country to which he is returned’.

144. In order to obtain provisional authorisation to stay in France for health care

(autorisation provisoire de séjour pour soins – APS), three documents are required: a doctor’s

recommendation, a valid passport and a sworn affidavit to leave the territory when the

treatment is finished. Generally speaking, an APS was granted for a renewable three-

month term. However, this procedure posed certain problems: the measure relies on

discretionary power, with variations from one prefecture to another; the authorisation is

only a precarious document; the APS is not valid as a work permit. These problems were

partially remedied by the circular of 24 June 1997 which provides for the delivery of a

temporary residence card, i.e. limited to three months, ‘if the report by the medical

health inspector of the département shows the necessity of long-term treatment for

foreigners in a situation such as this […], except in the case of a threat to public policy’.

Furthermore, it includes an authorisation to work, with ‘the wording “employee” if the

foreigner so requests and if the medical health inspector of the département deems that the

state of health of the person concerned is compatible with a professional activity’ 208.

145. In principle, Council of State jurisprudence obliges the administrative authorities to

make sure that the expulsion order does not contravene the provisions of article 8 of the

208 Ministry of the Interior, circular of 24 June 1997, relating to re-examining the situation of certain categories offoreigners in an irregular situation, NOR/INT/D/97/00104/C, point 1.7.; J.O., 26 June 1997, 9819. In order toavoid discretionary power, associations are asking for more precise wording in the circular. On the previousproblems raised, see Conseil national du sida [National AIDS Council]: Rapport suivi d’un avis sur la situation despersonnes atteintes par le VIH, de nationalité étrangère et en irrégularité de séjour [Follow-up report on an opinion of theNational AIDS Council on the situation of foreign nationals with the HIV virus residing unofficially in France],December 1995, p.29 . This category of ‘serious illness requiring medical treatment’ is confirmed by new article 29of the 1946 order, introduced by article 21 of the law of 11 May 1998; J.O., 12 May 1998, 7087.


ECHR and that it is not likely to result in exceptionally severe consequences for the

person concerned.

It was judged that the expulsion of a person having undergone medical treatment did

not have exceptionally severe consequences for the personal situation of the petitioner,

even though the treatment had ceased on the date of the expulsion order and it had not

been established that the person’s state of health could be monitored under normal

conditions in the country of origin 209. By contrast, in the case of a person still undergoing

medical treatment, it was judged that returning the person to the border would have

severe consequences for the person concerned 210.

146. In an official statement on 12 July 1993, the National AIDS Council (Conseil

national du sida) recommended that ‘the authorities responsible for applying the law

should defer applying an expulsion in all cases where, due to a lack of proper health

resources and infrastructure, the patient would be unable to continue the medical

treatment which his state of health requires in the country to which he is returned. The

aim is to prevent expulsion resulting in consequences which are disproportionate to the

circumstances prompting the expulsion’.

147. One case raised the issue of France’s right to expel a Tunisian national undergoing

triple therapy 211. In this case, the person concerned, who was living with HIV/AIDS, was

expelled on 7 February 1997, despite the fact that he was in possession of a provisional

authorisation valid until 4 June 1997. This provisional authorisation was granted on the

grounds that there was no possibility of treatment in Tunisia. The person concerned had

lived in France since 1972 and been under an expulsion order since 1984. The Minister

of the Interior gave an assurance that this person would not be expelled without an

assessment by medical experts. Furthermore, during the forced evacuation of Africans

209 C.E., 28 December 1992, Gaz. Pal., 1993, Panorama de droit administratif [Overview of administrative law], 129.210 C.E., 19 June 1992, Gaz. Pal., 1993, Panorama de droit administratif, 27.211 Migration News Sheet, March 1997; Nouvel Observateur, 20-26 February 1997, p. 48; Libération, 25 March 1997, p. 14.


occupying the Saint Bernard church in Paris, the Prime Minister confirmed that ill

persons would not be expelled from France.

The Ministry of the Interior nevertheless decided to expel the Tunisian national on

the grounds that he represented ‘a serious threat to public policy’, even though his last

sentence, for theft, dated back to 1995 and the Isère prefecture had renewed his

residence permit. In its decision of 21 March 1997, the administrative court of Grenoble

ordered a stay of execution on the ruling endorsing the expulsion of the person

concerned, namely the ruling repealing the Tunisian national’s residency order. In fact

the court considered that the expulsion decision was likely to be quashed and that its

execution was severely prejudicial to the foreigner. The court held that the Minister of

the Interior had not examined all the consequences of his decision on the personal

situation of the person concerned.

148. Another case involving France, relating to an Angolan person suffering from AIDS,

was brought in Strasbourg but was thrown out by the Commission. The facts of the case are

as follows. Between 1986 and 1994, France granted several residence permits to the

petitioner and, as from 1991, he benefited from the provisions pertaining to non-suited

asylum-seekers. In 1995 the petitioner was sentenced by the Paris high court to one year in

prison and a ban on residing in French territory for three years for drug trafficking. After

serving his sentence, the petitioner was put under administrative detention with a view to

executing the Paris court’s decision to ban him from residing in the territory. In 1996, the

Paris court extended the administrative detention and ordered a medical examination, in

view of the fact that his very serious state of health prevented him from leaving France. The

Paris Court of Appeal confirmed this decision, saying firstly that the person concerned did

not fulfil the required conditions for obtaining a residency order and secondly that

according to the medical examination, his state of health was compatible with the

detention measure. Subsequently, the Paris prefectural police asked the doctor at the

detention centre to state whether detention was compatible with the petitioner’s state of

health. Following this the person concerned was released. The Minister of the Interior then

issued two orders. The first order was to expel the petitioner on the grounds that he posed a

threat to public policy. The second order stated that, due to the state of health of the person

concerned, he would be compelled to reside in Paris and must regularly report to the police.

The petitioner claimed that his expulsion from French territory would violate article 3


of the ECHR because of his state of health. After the French government stated that the

petitioner would not be returned to his country unless his state of health improved or he

threatened public policy again, the Commission considered that the petitioner was no

longer a victim and that the dispute was resolved 212.

An action was also brought against France by a Congolese citizen living with AIDS.

As the expulsion was suspended, the Court said that there was no breach of article 3

ECHR 213. Two similar actions were brought by a Tunisian citizen and a Moroccan citizen 214.

149. In its report of December 1995, the National AIDS Council issued the following

conclusion: ‘the National AIDS Council considers the situation of foreign nationals

living with HIV/AIDS residing unofficially in France to be very worrying. Such persons

run the risk of being expelled to countries where they do not always have ties and where

they cannot always benefit from the medical follow-up required by their state of health.

In France, such persons suffer the dual problem of access to care and means of subsistence.

It would appear that in practice they are often deprived of their rights under the law’.

These various findings have led the National AIDS Council to make a number of

recommendations. These concern, in particular, the issuing of clear directives regarding:

the delivery of residence permits for health care; the submission of appraisals to

independent doctors specially trained in HIV pathology; and taking into consideration

the nature of the disease and the duration of treatment when fixing the duration of the

provisional residence authorisation 215. These recommendations are partially taken into

account in the circular of 24 June 1997 (supra, § 144).


150. With respect to the residence of Union citizens in France, decree no. 94/211 of 11

March 1994 regulating the conditions of entry and stay in France of citizens of the Member

States of the European Community benefiting from the free movement of persons states that a

212 Petition no. 30011/96, Lenga v. France.213 See supra, § 81214 Petitions nos 34794/97 and 37681/97.215 National AIDS Council, o.c., p. 27 et seq.


residence card may be refused if the applicant is suffering from one of the diseases or

infirmities figuring in the annexe (article 6) which might threaten public policy or public

safety. This annexe does not make reference to HIV/AIDS 216. Even though this provision

is intended to apply Directive 64/221, its wording is somewhat different, in that it

replaces the notion of ‘public health’ referred to in the directive by the notion of ‘disease

or infirmity which might threaten public policy or public safety’ . Even though this

wording cannot be interpreted differently from the notion of public health in the

directive, it does lead to the a contrario possibility that public health may be included in

the notion of public policy for foreigners in general.

2.2. Students

151. In order to obtain a ‘student’ residence permit a medical certificate must be

established by a doctor approved by the IMO in France.

2.3. Refugees

152. Article 12 of the 1946 decree provides that refugees and members of their family, as

well as the family members of stateless persons, must provide a medical certificate.

The HIV test is not compulsory for refugees. Asylum-seekers who enter the national

reception centre scheme are therefore not screened, except if they so request.

Nevertheless, some doctors systematically offer screening in which case it is generally

requested 217. The person’s state of health does not constitute legitimate grounds for

obtaining refugee status 218.

216 The annexe covers ‘1. Drug addiction. 2. Blatant psychological or mental disorders, clear states of excitative typepsychosis, paranoid psychosis or hallucinations or mental confusion’ .

217 Information provided by France Terre d’Asile on 8 April 1997.218 Information contained in the document published by Aides entitled ‘Les différents titres de séjour’ [Different types

of residence permit].


7. (FIN) Finland1. Foreigners in general1.1. Entry

153. The Finnish Aliens’ Act of 22 February 1991 does not provide for refusal of entry to

foreigners on grounds of public health.

Article 37 mentions the general conditions of entry to Finland. Public health is not

mentioned, and neither is public policy in general. The law refers to more specific cases,

such as a criminal sentence.

HIV/AIDS is not used as grounds for refusing right of entry 219.

Article 12 of decree 14/94 on foreigners states that a visa must be granted if refusing

entry would be unreasonable in view of the state of health of the person concerned or of

that of related or closely associated persons.

1.2. Residence

154. The law provides that a residence permit can be rescinded if the foreigner misleads

the authorities as to his identity, gives false information or conceals certain information,

or for ‘other strong grounds’ (article 21). However, right of residence can neither be

refused nor revoked on the grounds of HIV/AIDS 220.

155. Article 28 of the Finnish Aliens’ Act stipulates that a foreigner requesting a work

permit may be required to supply certain information, particularly regarding his state of

health. Parallel with this, article 21 of decree 142/94 on foreigners states that the work

permit application must contain the information specified in article 28 of the Aliens’

Act, except in certain cases where such information is not necessary according to

instructions from the Ministry of Labour. A description of the foreign applicant’s state of

health is required in cases where it is required of a Finnish national applying for a similar

job. Article 28 is therefore not a provision allowing an HIV test to be imposed on

foreigners requesting a permit to work in Finland 221.

219 Information provided by the Ombudsman for Foreigners on 25 March 1997.220 Information provided by the Ministry of the Interior on 16 April 1997.221 Information provided by the Ombudsman for Foreigners on 25 March 1997.


1.3. Expulsion

156. Article 40 of the Aliens’ Act lists the grounds for expelling a foreigner. This article

states that a foreigner may be expelled if he has no residence permit, is unable to support

himself, commits an offence, or demonstrates by his behaviour that he is a danger to

others or is engaged in illegal activities, espionage or sabotage. There is no express

provision for the expulsion of a foreigner in general on public health grounds. HIV/AIDS

is not a reason for expulsion. On the contrary, it appears that expulsion can be ruled out

on the grounds of a foreigner’s state of health. The Finnish courts will have to take

cognisance of a lawsuit concerning the transmission of the virus by an American national

to a third party, even though he knew he was infected by the disease. If this person is

sentenced, he may be expelled because of the fact that he knowingly passed on the

disease and not merely on the grounds of HIV/AIDS 222.


157. Foreigners entitled to residence on the basis of Union law may only be expelled if

they pose a threat to public policy, public safety or public health (article 40 in fine). A

ministerial circular was issued concerning the application of general legislation relating to

foreigners to comply with Union law, in particular Directive 64/221 223. Article 40 does

not permit the expulsion of Union citizens living with HIV/AIDS 224.

2.2. Students

158. There is no compulsory screening for students 225. The test is carried out only on a

voluntary basis 226.

222 Information provided by the Ombudsman for Foreigners on 25 March 1997.223 Ministry of the Interior Circular of the 8/010/93 and Instruction 10/010/94 relating to the application of the

provisions of the Aliens’ Act in compliance with Community law (Regulations 1612/68 and 1251/70, Directives68/360, 64/221, 73/148, 73/34, 90/364, 90/365 and 93/96).

224 Information provided by the Ministry of the Interior on 16 April 1997.225 Information provided by the Ombudsman for Foreigners on 25 March 1997.226 Information provided by the Ministry of the Interior on 16 April 1997.


2.3. Refugees

159. Article 40 provides for the expulsion of refugees if they threaten national security or

public policy, though not public health.

Asylum-seekers must undergo a physical examination but the decision relating to the

request for asylum is not influenced by whether or not the asylum-seeker is suffering from

HIV/AIDS. Nevertheless, if the asylum seeker is in a particularly poor state of health, he

may be granted right of residence even if he does not fulfil all the conditions 227. The HIV

test is performed on a voluntary basis 228.

8. (GR) Greece1. Foreigners in general1.1. Entry

160. The provisions relating to foreigners are found in law 1975/91 of 21 November 1991.

This law does not apply to people entitled to residence under Community law.

Article 6, paragraph 5, letter a, of law 1975/91 states that entry will be refused to any

foreigner suffering from a disease which, by virtue of a decision by the Minister

competent on subjects of health in accordance with international WHO rules, is deemed

as capable of constituting a danger to public health. Nevertheless, no ministerial decision

has ever been adopted with relation to HIV/AIDS.

161. Article 22-4 of the same law provides that authorisation to enter Greece for work

reasons may be revoked or suspended for public health reasons.

1.2. Residence

162. Article 12 of the Aliens’ Act states that public health is one of the elements which

should be taken into account when granting a short-term residence permit.

The HIV test is considered to be a prerequisite for extradited persons and for certain

foreigners requesting a work permit 229. Circular number 4548/90 states that the test must

be performed after the person has received proper information and given his consent.

This circular has no legal value but sets out guidelines.

227 Information provided by the Ombudsman for Foreigners on 25 March 1997.228 Information provided by the Ministry of the Interior on 16 April 1997.229 Circular 4548/90.


Performing artists requesting a work permit who are suspected of being ill are

subjected to a test 230.

163. Article 31, paragraph 2 of the Aliens’ Act states that the public services are obliged

to refuse to examine a request from a foreigner who is not in possession of the requisite

residence permit or who cannot prove that he is legally resident. It is stipulated that

hospitals are exempted from fulfilling this obligation if the foreigner has entered Greece

for emergency treatment.

1.3. Expulsion

164. One of the grounds for expulsion mentioned in article 27, paragraph 1, letter c, of

the Greek law is where the presence of the person concerned on Greek territory is

considered to be a danger to public health. There would appear to have been expulsions

for HIV/AIDS-related reasons 231.

1.4. Code

165. The Greek Centre for the Control of Infectious Diseases (Keel) has established a

code of basic principles for protecting persons living with HIV/AIDS. With regard to

foreigners, this code considers that screening should not be authorised upon entry to the

territory or for granting the right of residence. The code also considers that HIV/AIDS

should not be used to justify expulsion, that no test should be imposed on refugees and

students and that the presence of HIV/AIDS should not lead to refusal of the right

of asylum.


166. Entry to the territory and the right of residence of Union citizens is governed not by

general legislation but by special legislation 232. This special legislation transposes

230 Memorandum from the Ministry of Foreign Affairs of 8 August 1988.231 A. HENDRIKS, o.c., p. 197.232 Presidential decree no. 525 of 31 December 1983 transposing Directives 64/221, 73/148, 75/34 and 75/35

supplemented, for other directives, by presidential decrees 499/1987 and 278/1992.


Community law. A medical certificate may be requested 233. Reference should be made

to Directive 64/221 234.

2.2. Students

167. Article 15 of the Aliens’ Act concerns student residence permits. Medical

and pharmaceutical expenses are taken into consideration when authorising the

renewal of residence permits, as is the absence of danger to public health.

The HIV test is imposed on students from countries where the epidemic is

very widespread 235.

2.3. Refugees

168. Article 24 of law 1975/91 relates to refugees. This article states that the conditions

and procedure for granting medical and pharmaceutical care are governed by a

presidential decree proposed by the competent ministers.

9. (I) Italy1. Foreigners in general1.1. Entry

169. Article 3 of the law of 28 February 1990 on foreigners, concerning the documents

required by third country nationals to enter Italy, states that before a visa may be issued,

the foreigner must be in compliance with health provisions. Nevertheless, there are no

health regulations which must be respected by third country nationals 236. Entry may be

refused in order to curb the spread of a contagious disease 237.

233 P. VERBIST, in Center for International Legal Studies, D. Campbell (Ed.), International Immigration and NationalityLaw, Greece, The Hague, Kluwer, 1994, III, 2, 3 and 4.

234 Supra, §§ 35 et seq.235 Circular 4548/90. See also, P. CATTORINI, D. MORELLI and M. ZANCHETTI, AIDS: comparison and analysis

of European legislation on AIDS from the ethical and legal standpoint, Istituto Scientifico H. San Raffaele, 1996, p. 75.236 Information provided by F. Trucillo on 2 May 1997. See also F. LEITA, in B. NASCIMBENE (E.), La condizione

giuridica dello straniero, Diritto vigente e prospettive di riforma, Padova, CEDAM, 1997, p. 176.237 A. CORRADO and R. TARDIOLI, in Center for International Legal Studies, D. Campbell (Ed.), International

Immigration and Nationality Law, Italy, The Hague, Kluwer, 1994, III, 2.


1.2. Residence

170. A residence permit for the purposes of tourism, studies or work for nationals from third

countries may be refused on health grounds. Article 4-12 of the law of 1990, regarding the

residence of third country nationals, provides for refusal to grant residence on grounds of

public health. Article 4 (2) of statutory order no. 489 of 18 November 1995 stipulated a

health inspection for immigrants. This inspection was also provided for in statutory order

no. 132 of 19 March 1996 and statutory order no. 269 of 17 May 1996. By contrast, in the

statutory order of 16 July 1996, no reference is made to a health inspection.

HIV screening was proposed for tourists and immigrants but it was judged to be futile

and discriminatory. The Italian government has rejected such practices.

Widespread compulsory screening is expressly prohibited by article 5 c.3 of law

no. 135 of 15 June 1990. According to this provision, ‘nobody may be subjected, without

their express consent, to tests aimed at establishing the presence of HIV infection, except

for reasons of clinical necessity or in the person’s own interest’ . Given that there is no

compulsory screening for foreigners, right of residence is not refused on the grounds of

HIV/AIDS 238.

The immigration legislation reforms examined by the Italian Parliament in May

1997 among others concern public health, but there is no provision to introduce a

compulsory HIV test.

1.3. Expulsion

171. Article 7 of the statutory order of 17 May 1996 239 provides for expulsion to be

decided on the grounds of public policy and state security. Public health is not expressly

mentioned.

Expulsion may not be justified by HIV/AIDS 240.


172. In Italy there are no special provisions governing the entry and residence of

Union citizens.

238 Information provided by F. Trucillo on 2 May 1997.239 Statutory order of 17 May 1996, no. 269, Gazzetta ufficiale della republica italiana, 18 May 1996, 21.240 Information provided by F. Trucillo on 2 May 1997.

2.2. Refugees

173. There is no compulsory screening for refugees. Consequently, HIV/AIDS is not used

as grounds for refusing the right of asylum 241.

10. (IRL) Ireland1. Foreigners in general1.1. Entry

174. The Aliens’ Act provides for a medical examination upon entry to the country 242.

The immigration officer may refuse authorisation to enter the country in cases where

a foreigner is suffering from a disease figuring in the annexe to the law 243. This annexe

reproduces the exact list of diseases mentioned in Directive 64/221.

At present there are no restrictions on the entry of persons living with HIV/AIDS 244.

1.2. Residence

175. A residence permit may not be refused for HIV/AIDS-related reasons 245.

1.3. Expulsion

176. In practice nobody would appear to have been expelled on the grounds of

HIV/AIDS 246.


177. Entry may be refused to Union citizens suffering from one of the diseases mentioned

in the annexe to the law on the entry and residence of Union citizens, which reproduces

Directive 64/221 247.


241 Information provided by F. Trucillo on 2 May 1997.242 Aliens Order 1946, article 7 (1).243 Aliens Order 1975, article 5 (2).244 Information provided by The Irish Refugee Council on 18 April 1997.245 Information provided by The Irish Refugee Council on 18 April 1997.246 Information provided by The Irish Refugee Council on 18 April 1997.247 European Communities (Aliens) Regulations 1977, article 4 and European Communities (right of residence for non-

economically active persons) Regulations 1993, article 4.

A medical examination may be imposed on Union citizens to check whether they

are suffering from one of the diseases mentioned in the Schedule (European Communities

(Aliens) Regulations, article 10). If the person concerned does not submit to this

examination, delivery of the first residence permit may be refused (article 12). The only

diseases which may justify a refusal to deliver the first residence permit are those listed in

the Schedule (article 12). These principles are reiterated in the text relating to the right

of residence of non-economically active Union citizens (European Communities

Regulations 1993, article 6).

178. Union citizens may be expelled if a first residence permit has not yet been issued and

the person is suffering from one of the diseases mentioned in the annexe. These are the

diseases mentioned in Directive 64/221 248.

2.2. Refugees

179. There is no compulsory test for refugees and it would appear that HIV/AIDS is not

used as grounds for refusing the right of asylum 249.

11. (L) Luxembourg1. Foreigners in general1.1. Entry

180. A foreigner likely to jeopardise public health may be refused entry to Luxembourg 250.

Any foreigner entering the Grand Duchy may be obliged to undergo a medical

examination. The medical examination upon entry to the territory may not include

HIV/AIDS testing. Article 5 of the grand-ducal Regulation of 17 October 1995 relating to

the medical examination of foreigners, reproduces the classic list of the European Directive

64/221 but, after the ‘other infectious or parasitic illnesses mentioned in protective

provisions concerning national citizens’ adds the words ‘with the exception of

HIV/AIDS’.


248 European Communities (Aliens) Regulations 1977, articles 12 and 14 and European Communities (right of residence fornon-economically active persons) Regulations 1993, article 7.

249 Information provided by The Irish Refugee Council on 18 April 1997.250 Article 2 of the law of 28 March 1972 concerning the entry and residence of foreigners, the medical control of foreigners

and the employment of foreign workers.

1.2. Residence

181. A foreigner likely to jeopardise public health may be refused residence (article 2).

Any foreigner declining to undergo the medical examination specified in article 21

of the law, or one who knowingly misinforms the authority responsible for this

examination regarding his state of health, may be refused authorisation to settle in

Luxembourg (article 5, paragraph 6).

The foreigners’ identity card may be withdrawn or its renewal refused in cases where

a foreigner is likely to jeopardise public health (article 6).

Any foreigner, with the exception of Union citizens, who is planning to reside in

Luxembourg for longer than three months, must undergo a medical examination within

three days of entering the country (article 2 of the grand-ducal Regulation of 17 October

1995 relating to the medical examination of foreigners). A foreigner whose foreigners’ identity

card has expired and who wishes to re-establish his residence in Luxembourg must

undergo a further medical examination (article 3 of the regulation).

As in the case of entry to the country, the medical examination may not include

HIV/AIDS since this disease is expressly excluded by article 5 of the aforesaid regulations

(supra, § 180).

In its opinion on the draft of modification of the 28 March 1972 law (by the law of

18 August 1995), concerning the medical examination of foreigners, the Council of State

drew attention to the fact that article 21 theoretically allowed the possibility of

submitting certain foreigners to screening. Paragraph 1 of article 21 provides that ‘with

the exception of nationals from European Union Member States, but without prejudice

to the provisions of paragraph 2 of the present article, any foreigner entering the Grand

Duchy and any foreigner wishing to reside there may be obliged to undergo a medical

examination’. Paragraph 2 states ‘If during a border control, the officials in charge of

controlling persons have doubts as to a foreigner’s state of health, they may call for a

doctor and demand a medical examination of the person concerned’. The Council of

State deemed that instructions needed to be given to prevent any abuses, which has not

been done on 31 December 1997. Nevertheless, right of residence has never been refused

for HIV/AIDS-related reasons 251.


251 Information provided by the SESOPI - Inter-Community Centre (SESOPI - Centre intercommunautaire) on 10 April 1997 and the Health Ministry on 18 April 1997.

1.3. Expulsion

182. Any foreigner likely to jeopardise public health may be expelled (article 9, paragraph

1). There are provisions for removal from the territory by the law enforcement authority,

especially for foreigners not authorised to reside in the country who have been refused

entry because they are likely to jeopardise public health or for foreigners not authorised to

reside in the country, who in the cases mentioned in article 2, paragraph 2 of the

Application Convention of the Schengen Agreement, are likely to jeopardise public

policy (article 12). There has never been an expulsion or removal on HIV/AIDS-related

grounds 252. Article 14 expressly states that no expulsion or deportation may be decided if

in the country of destination the foreigner is exposed to treatment contrary to article 3 of

the ECHR. In the case of persons living with HIV/AIDS, the fact that they have no

access to treatment for the disease in the country of destination could fall within the

scope of application of article 3 of the ECHR 253.

Where a foreigner cannot be expelled immediately and is made subject to a

placement order, he has the right to be examined by a doctor (article 15, paragraph 6).


183. Union citizens are not, in principle, required to undergo the medical examination for

foreigners under common law (article 21 of the law of 28 March 1972; article 1 of the grand-

ducal Regulation of 17 October 1995 relating to the medical examination of foreigners).

However, article 21, paragraph 1 of the law of 1972 does stipulate that it applies

without prejudice to the provisions of paragraph 2, which states that ‘if during a control,

the officials responsible for controlling persons have doubts as to a foreigner’s state of

health, they may call for a doctor and demand a medical examination of the person

concerned’.


252 Information provided by the Health Ministry on 18 April 1997.253 See supra, § 76.

12. (NL) Netherlands1. Foreigners in general1.1. Entry

184. Article 8 of the 3 January 1965 Aliens’ Act mentions public policy, the peace and

national security as general conditions for entering the territory. Public health is not

expressly mentioned.

Legislation on immigration does not provide for medical controls upon entry to the

territory.

185. There is no HIV test at borders and no seronegativity certificate is required for entry

to the territory 254.

186. Where an application for entry is made on medical grounds, an inquiry is carried out

by the Ministry of Justice Medical Inspector.

1.2. Residence

187. HIV/AIDS is not used as grounds for refusing the right of residence 255.

1.3. Expulsion

188. Dutch legislation does not provide for expulsion to be decided on public health

grounds. HIV/AIDS does not in principle serve as grounds for expulsion 256.

189. The Aliens’ Act states that a foreigner may not be expelled if his return is unjustified

in view of his state of health (Aliens’ Act of 13 January 1965, article 25).


254 D. ZEEGERS, ‘Droit et sida: perspectives aux Pays-Bas’ [Law and AIDS: perspectives in the Netherlands], Droit etsida: comparaison internationale, o.c., p. 339; information confirmed by the Ministry of Justice on 10 June 1997.

255 Information provided by the Ministry of Justice on 10 June 1997. It transpires from the documents forwarded bythe Dutch administration that, since 1994, the question of granting right of residence to persons living withHIV/AIDS has arisen in practice. It appears that the expulsion of foreigners suffering from the virus was rejected. Itthen remained to settle the question of whether HIV/AIDS could justify a residence authorisation. There iscontroversy over the issue of whether right of residence should be granted on the basis of article 25 of the Aliens’Act, explicitly mentioning the state of health, or on the basis of humanitarian grounds. The latter is preferredbecause it leaves greater latitude to decide on a case-by-case basis, especially with regard to the cost of health careto the state.

256 Idem.

190. Foreigners who are in the terminal stages of AIDS are not expelled from the

Netherlands 257.


191. Article 91, point 1, letter b of the decree of 19 September 1966 on foreigners states

that Union citizens suffering from one of the diseases listed in the annexe may be refused

entry. This provision does not apply to nationals of Belgium and Luxembourg. Even

though it is clearly based on the BENELUX Treaty of 3 February 1958, this exception is

not found expressis verbis in Belgian and Luxembourg legislation. The annexe, which

reproduces the list of diseases figuring in Directive 64/221, does not expressly mention

HIV/AIDS. This point is emphasised by doctrine 258. Unless it is expressly mentioned,

HIV/AIDS may not lead to a Union citizen being refused entry or expelled 259.

192. In accordance with article 97 of the decree, if a foreigner comes under any of the

categories mentioned in article 94 (persons entitled to residence on the basis of Directive

68/360, Regulation 1251/70, Directive 73/148, Directive 75/34, the three Directives on

the right of residence: 90/364, 90/365 and 93/96), a residence permit may be refused if the

foreigner is suffering from one of the diseases listed in the annexe.

2.2. Refugees

193. Refugees are only submitted to an HIV test on a voluntary basis and HIV/AIDS is

not used as grounds for refusing the right of asylum 260.

According to practitioners, recent jurisprudence shows that right of residence or

asylum is more freely granted where the requisite medical treatment is unavailable in the

country of origin 261.


257 Information provided by the Ministry of Justice on 10 June 1997.258 T.L. BADOUX, in Center for International Legal Studies, D. Campbell (Ed.), International Immigration and Nationality

Law, The Netherlands, The Hague, Kluwer, 1994, VII, 17.259 Information provided by the Ministry of Justice on 10 June 1997. See supra, §§ 35 seq.260 Information provided by the Ministry of Justice on 10 June 1997.261 Information provided by HIV Vereniging Nederland on 10 March 1997, by Vluchtelingen Werk on 3 April 1997 and

by the Ministry of Justice on 10 June 1997.

13. (P) Portugal1. Foreigners in general1.1. Entry

194. Article 10 of the 3 March 1993 Aliens’ Act 262 provides for entry to be prohibited in

cases where there is a threat to public policy or national security, but not on the grounds

of public health.

195. There is no systematic screening at borders.

1.2. Residence

196. In order to obtain a short-stay visa, the Aliens’ Act of 3 March 1993 stipulates that

the person concerned must not endanger public policy or national security (article 33-4),

although public health is not expressly mentioned in article 33 of the law of 3 March 1993.

197. Article 4-1 of the decree of 15 December 1993 263 applicable to third country

nationals calls for a medical certificate to accompany applications for residence, work and

study permits, which must be obtained prior to application for residence. This certificate

must prove that the person concerned is suffering from no infectious or contagious

disease. AIDS is included in the notion of infectious or contagious disease 264.

1.3. Expulsion

198. The Aliens’ Act of 3 March 1993 provides for expulsion to be decided on grounds of

national security, public policy and morals, but not for public health reasons (article 67).


199. Article 12 of the decree of 3 March 1993 (statutory order n° 60/93 of 3 March),

concerning Union citizens and their families, states that entry may be refused on the

grounds of public health. This decree reproduces the list of diseases mentioned in

Directive 64/221.


262 Statutory order n° 59/93 of 3 March.263 Decreto regulamentar no. 43/93.264 Information provided by the Portuguese Embassy in Brussels on 17 January 1997.

200. Union citizens and their families may be refused residence on public health grounds

if the person is suffering from one of the diseases mentioned in decree 60/93 referring to

those listed in Directive 64/221. In compliance with the directive, if any of these diseases

occurs after right of residence is granted, an extension to the right of residence may not

be refused (statutory order 60/93, article 12).

201. Union citizens may only be expelled on public health grounds if they are suffering

from a disease mentioned in article 12 of statutory order 60/93.

14. (S) Sweden1. Foreigners in general1.1. Entry

202. The Aliens Act (1989:529) 265 with amendments October 1997, does not provide for

entry to be refused on the grounds of public health. Chapter 4 of this act list the grounds

for refusing entry to the territory. Public health is not one of these. Generally speaking,

although public policy does not figure on the list either, the law does state that entry may

be refused, for instance, in cases where the person concerned has received a criminal

sentence or is suspected of illegal activities.

203. Screening is sometimes offered to immigrants on a voluntary basis 266.

Swedish law allows compulsory screening only in association with body searches

(article 28:12 of the Code of Procedure). In fact, compulsory screening is contrary to the

constitution (article 6 of Chapter II) which affirms that all citizens are protected against

any forced physical violation at the hands of the public authorities. In the absence of

specific provisions, foreigners benefit from the same rights as Swedish citizens with regard

to protection against physical violation (article 2: 2; article 3:5).


265 As modified in October 1997.266 L. WESTERHALL and A. SALDEEN, ‘Réflexions sur le sida et le droit suédois’ [Remarks on AIDS and Swedish

law], Droit et sida, comparaison internationale, o.c., p. 393; information confirmed by the National Immigration Boardon 24 April 1997.

In Sweden it is thought that compulsory screening would not alter the epidemiology

of AIDS 267.

1.2. Residence

204. HIV/AIDS is not used as grounds for refusing the right of residence in Sweden 268.

Medical information is not one of the elements on which residence permit decisions are

based.

205. In the case of international child adoption, the adoptive parents may indicate their

agreement to a test being carried out 269.

1.3. Expulsion

206. Expulsion for public health reasons is not covered by legislation on foreigners.

Expulsion is possible where there is a threat to national security 270. However, it would

seem that in practice people cannot be expelled on the grounds of HIV/AIDS 271.

2. Special categories2.1. Refugees

207. Refugees are not subject to a compulsory HIV test 272. However, it is possible for

asylum-seekers not to be informed that the test is voluntary and can be refused 273.

There have been several cases of refugees being authorised to remain in Sweden even

when it was discovered that such persons were living with HIV/AIDS. It was considered

inhumane to expel them 274.


267 M. SALOMONET and R. TOUBON, Sida, sociétés et populations, o.c., p. 238.268 Information provided by The Noah’s Ark-Red Cross Foundation on 25 April 1997 and by the National Immigration

Board on 24 April 1997.269 General recommendations no. 20 of 30 August 1989 from the Department of Health on the medical examination

of children adopted abroad.270 M. BRORSSON in Center for International Legal Studies, D. Campbell (Ed.), International Immigration and

Nationality Law, Sweden, The Hague, Kluwer, 1994, 0-1; section 11 of the Aliens Act (1989:529).271 Information provided by The Noah’s Ark-Red Cross Foundation on 25 April 1997 and the National Immigration

Board on 24 April 1997.272 Information provided by the National Immigration Board on 24 April 1997.273 M. HAOUR-KNIPE, Migrants and travellers group, final report, Lausanne, Institut universitaire de médecine sociale

et prévention, Cahiers de recherche et de documentation, 1991, p. 61; EUROCASO, Report of the first seminar on lawand HIV/AIDS, Amsterdam, 13-14 April 1991, p. 66.

274 EUROCASO, Report of the first seminar on law and HIV/AIDS, o.c., p. 66.

15. (UK) United Kingdom1. Foreigners in general1.1. Entry

208. Persons arriving in the United Kingdom may be examined by a medical inspector

(Schedule 2, Section 4, Part I, 2 of the 1971 Immigration Act, paragraph 8 of the

Regulation of 23 May 1994 275). The immigration officer may authorise entry but demand

a further medical examination in the interests of public health (Schedule 2, Section 4,

Part I, 7 of the Immigration Act). Where it is decided not to refuse entry on

humanitarian grounds, the immigration officer tells the foreigner to report to the medical

health inspector for a further examination and treatment (paragraph 38 of the 1994

regulation).

209. Article 36 of the Regulation of 23 May 1994 provides that persons arriving in the

United Kingdom to receive medical care should be referred to the medical inspector.

It has been judged that the argument that the disease can be treated in the country

of origin is not enough to refuse entry to the territory 276.

210. Formerly the Ministers of the Interior and of Health declared that entry would be

prohibited to people carrying the HIV virus, with application of the measure being left to

the discretion of port or airport officials 277. Immigration officers apparently frequently

detained visitors belonging to groups at risk, in order to ask them questions concerning

their state of health and financial situation, sometimes trying to intimidate them 278.

Furthermore, it would appear that the ‘Viral Infectivity Regulations’ applied in English

prisons (a policy favouring the segregation of HIV-positive prisoners and the imposition


275 HC 395.276 Immigration Appeal Board, Mohan, (1973) Immigration Appeal Reports 9.277 M. VINCINEAU (editor) Le sida, un défi aux droits, actes, 1991, p. 94.278 Information provided by Mr. D. Geer from the Immunity Legal Centre, during an interview on 16 May 1992, in

Etude comparative sur la discrimination à l’encontre des séropositifs et des malades du sida [Comparative study ondiscrimination against people who are HIV-positive or suffering from AIDS].

279 Information provided by Mrs K. Hutton from the National AIDS Trust during an interview on 15 May 1992, inEtude comparative sur la discrimination à l’encontre des séropositifs et des malades du sida.

of limitations on medical confidentiality) had been applied by immigration officers to

foreigners living with HIV/AIDS 279.

211. A Ministry of the Interior BDI general policy document explains to immigration

officials the directives they should follow for persons living with HIV/AIDS.

The provisions set out in the immigration rules are applied without derogation to

applications for entry to the country. Entry is refused where the person concerned is not

entitled under the immigration provisions 280. Where immigration officers are aware that a

foreigner requesting entry to the territory is suffering from AIDS, the foreigner must

prove that he has sufficient financial means to pay for his medical treatment.

The fact that someone has AIDS or is HIV positive is not in itself grounds for

refusing entry clearance. However, where in any case it appears that public health may be

at risk, advice would be sought from the Department of Health 281.

1.2. Residence

212. Any person intending to stay in the United Kingdom for more than six months

must normally report to the medical inspector (paragraph 36 of the Regulation of

23 May 1994).

If the inspector finds that the foreigner is suffering from an illness which might affect

his ability to support himself and his family, this factor will be taken into account when

granting right of residence (paragraph 37 of the Regulation of 23 May 1994).

The conditions of residence for medical reasons are set out in paragraph 51 of the

1994 Regulations. It is necessary for the foreigner:

■ to comply with paragraph 41 concerning entry to the territory

■ in the case of a communicable disease, to have satisfied the medical inspector that

there is no danger to public health

■ to show, if required, that the treatment is of finite duration

■ to have the intention of leaving the United Kingdom at the end of the treatment

■ to provide various forms of proof regarding the treatment, its costs and the person’s

financial ability to pay such costs.


280 Information confirmed by the Immigration and Nationality Directorate on 8 September 1997.281 Information provided by the Immigration and Nationality Directorate on 8 September 1997.

Where the conditions of paragraph 51 are satisfied, right of residence is granted for a

renewable period of six months (§§ 52 et seq.).

213. By virtue of the directives contained in the aforementioned BDI document,

applications for a residence permit from persons living with HIV/AIDS must be dealt

with on the facts of the case in accordance with the rules in force. However, there is

scope for a derogation on serious humanitarian grounds. Point 3 states that, in certain

cases where there is clearly no means of treatment available in the applicant’s country of

origin and it is likely that this lack of treatment will significantly reduce the life

expectancy of the person concerned, a residence permit should normally be granted.

214. Instructions have been issued by the Home Office for granting a three-month

residence permit to a foreigner wishing to care for a member of his family. If it involves a

friend, the permit is in principle refused except in an emergency. The permit is granted

on a discretionary basis, independently of the rules on immigration.

215. In the case of work permits, an application may pose problems where the person is

living with HIV/AIDS 282.

216. The High Court judged that two European citizens suffering from HIV/AIDS had no

right to temporary shelter, as provided for under the law, on the grounds that they were

unemployed and were not officially resident in the United Kingdom 283. The Home Office

had informed one of the persons concerned that he was not officially resident but that no

measures would be taken to oblige him to leave the territory. The Home Office had taken

no position regarding the other person.

The Court of Appeal reversed the High Court’s decision 284 on the grounds that the

people concerned did not require a residence permit.

It can be inferred from the High Court decision that persons living with HIV/AIDS

may be considered as unlawfully resident, not because of the disease itself but because

they are not working or do not have sufficient resources. The point raised in such cases is

the lack of financial means and not the existence of HIV/AIDS but the result is the same,


282 D. HARRIS and R. HAIGH, AIDS , a guide to law, London, Routledge, 1990, p. 1170.283 English High Court; Times Law Report, 20 October 1995.284 Court of Appeal; Times Law Report, 27 February 1996.

namely that the presence of the person concerned on national territory is unlawful. It can

be inferred from the Court of Appeal decision reversing the High Court decision that

Union citizens are better protected in that they may not be refused right to temporary

shelter since they are not required to have prior authorisation to stay in the country.

216b. On 19 December 1997, a High Court judge ruled that a Brazilian illegal immigrant

suffering from AIDS was entitled to claim food, shelter and health care from the local

council until he became fit enough to travel home. The High Court pointed out that the

law of humanity was above all laws and that it was a ‘duty of all civilized nations to

safeguard life and health’ so that the assistance is needed as long as ‘he cannot undertake

the journey out of the UK without risk to his life or serious injuries to his health’ 285.

217. As a rule, English public hospitals are obliged to care for any person who is in the

country. However, the National Health Service provisions (Charges to overseas visitors)

1989 Regulations relating to hospital costs owed by foreigners are sometimes used to refuse

medical care to certain patients 285b. For instance, certain hospitals require persons of

African origin to produce a British passport or establish that they are solvent 286.

1.3. Expulsion

218. People may be expelled from the United Kingdom in two cases. The first is where

there is a criminal sentence. The second relates to a decision by the Home Secretary.

Section 3 of the Immigration Act establishes three grounds for expulsion in this respect:

1. Failure to comply with a condition relating to the residence permit.

2. Where it is in the public interest.

3. In the case of the spouse or child of a person who is to be expelled.

A person living with HIV/AIDS may be expelled in the second case 287.

219. In accordance with information provided by the Home Office, foreigners with no

right of residence have been expelled after receiving treatment for HIV/AIDS 288.


285 Migration News Sheet, October 1997 and January 1998, p. 6 and information from The Terrence Higgins Trust.285b Information provided by The Terrence Higgins Trust on 9 May 1997.286 Étude comparative sur la discrimination à l’encontre des séropositifs et malades du sida, o.c., p. 141.287 D. HARRIS and R. HAIGH, o.c., p. 120.288 Black HIV/AIDS Network, BHAN policy Report 1- AIDS and the black communities (London, 1991), p. 28, in

Étude comparative sur la discrimination à l’encontre des séropositifs et malades du sida.

220. The European Court of Human Rights ruled the expulsion by the United Kingdom

of a national from St. Kitts who was seriously ill with HIV/AIDS and had no possibility of

treatment in his country of origin, to be contrary to ECHR article 3 (see supra, § 76).


221. Union citizens are not, in principle, subject to the system of prior authorisation for

entry or residence in the territory 289. Neither are such persons subject to the aforesaid

health inspections (s. 7 (1)). First residence could therefore only be refused under the

provisions of Directive 64/221.

This explains why the Court of Appeal deemed that European nationals could not be

expelled on the grounds that they were not given a residence permit because they lacked

sufficient means of subsistence, since they do not need prior authorisation (supra, § 215).

222. Right of residence is granted to the family members of a Union citizen under certain

conditions, including the absence of a threat to public health (paragraph 259 of the

Regulation of 23 May 1994).

2.2. Refugees

223. According to practitioners, there is no compulsory test for asylum seekers, and right

of asylum may not be refused on the grounds of HIV/AIDS 290. Nevertheless, refugees are

subject to general legislation on foreigners under common law for entry to the territory

(supra, §§ 208 seq.).


289 Immigration Act 1988 (1988 C 14), Section 7, Persons exercising Community Rights and Nationals of MemberStates.

290 Information provided by The Terrence Higgins Trust on 9 May 1997 and confirmed by the Immigration andNationality Directorate on 8 September 1997.

Third CountriesPart 3

122 The free movement of persons living with HIV/AIDS – Part 3: Third Countries

I PresentationA. Description224. The third part is devoted to the legislations and practices in countries outside the

European Union with which the Union has co-operation programmes. This part is

divided into three sections.

225. The first section is an across-the-board approach which summarizes the general

tendencies in all the countries examined (II). This general examination is sub-divided

into three subdivisions dealing with (A) the entry, (B) the residence and (C) the

expulsion of persons living with HIV/AIDS.

A second section gives the conclusions of this across-the-board approach (III).

The third section examines, for each of the third countries studied, the laws, the

regulations and, as far as possible, the practice concerning the movement of persons

living with HIV/AIDS (IV). This part of the study is based mainly on an analysis of

legislative and reglementary texts adopted by these states concerning immigration or

AIDS prevention. This main source was supplemented by an analysis of doctrine relating

to the issue of the free movement of persons living with HIV/AIDS, as well as practical

information obtained from governmental and non-governmental organizations.

B. Main conclusions from Part 3226. As regards the right of entry, express restrictions of the right of access to the

territory for foreigners living with HIV/AIDS are relatively rare in the countries studied.

However, in the numerous countries in which the legislation contains provisions

concerning access to the territory regarding public health or requirements for medical

controls, the possibility of limiting the right of access for HIV positive foreigners or those

who are suffering from AIDS is not excluded, even in the absence of express stipulations

to this effect.

As regards the right to residence, several states have adopted specific legislation

aiming at limiting the right to residence, generally for a long period, for foreigners living

with HIV/AIDS, and sometimes for certain categories of foreigners such as students or

workers. In other states, the provisions concerning public health which are frequently

incorporated into the legislation on foreigners could be used as grounds for establishing

limitations to the right to the free movement of persons living with HIV/AIDS.

The free movement of persons living with HIV/AIDS – Part 3: Third Countries 123

As regards expulsion, in certain states foreigners living with HIV/AIDS may be

expelled from the territory. In others, an expulsion order may be adopted more generally

in order to protect public health.

227. Once again, proportionality and non-discrimination are the leading principles to

interpret those texts and practices: are those means proportionate to the aim pursued,

that is the fight against AIDS? The general conclusions will come back to this question

(infra, § 554).


II General examination of legislation in third countries228. This part gives an across-the-board summary of the different countries studied.

The footnotes refer only to legislation connected with the problem of AIDS. For the

other references, the reader should refer to the country concerned in point IV (§ 257)

and in annexe III. The countries are mentioned in the order of the sub-groups defined in

point IV: Africa, Asia, South America, South Sea Islands, Central Europe, the former

Yugoslavia, and the Community of Independent States.

A. Entry1. Public policy229. Certain countries have legislated that entry may be refused with the aim of

protecting public policy or interests in general: Kyrghyzstan, Tajikistan, Turkmenistan

and Poland. This leads to the question of whether the notion of public health is

contained in the more general notion of public policy.

2. Public health2.1. Public health in general

230. Numerous countries have adopted legislation refusing access to the territory to

foreigners for reasons of health if they are suffering from an illness, particularly a

contagious illness. Sometimes this is legislation on public health (Dominican Republic).

However, the majority of the laws concerned involve immigration, especially for the

following countries: South Africa, Botswana, Burundi, Kenya, Lesotho, Malawi, Namibia,

Nigeria, Rwanda, Seychelles, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe, India,

Malaysia, Pakistan, Sri Lanka, Thailand, Turkey, Argentina, Bahamas, Barbados, Belize,

Chile, Colombia, Ecuador, Mexico, Trinidad and Tobago, Papua New Guinea, Tonga,

Albania, Bulgaria, Hungary, Macedonia, Belarus, Georgia, Kazakhstan, Lithuania

and Ukraine.

Sometimes these laws envisage the possibility, despite the prohibition on principle,

of permitting the presence of such persons in the country on the basis of certain

conditions (Seychelles, Swaziland, Zambia, Zimbabwe, Belize, and Trinidad and Tobago).


231. Among the countries that have adopted legislation to refuse entry to foreigners for

health reasons, few have defined the illnesses that might justify this refusal. In South

Africa, a notice of 1987 had included AIDS in this notion. In 1991, a notice struck AIDS

off the list of illnesses that might justify refusal of entry to the territory. In Malawi, the

regulation on immigration which lists the illnesses concerned does not mention AIDS.

The same holds true for Zimbabwe, but in this country the practice leads to considering

AIDS as an illness justifying refusal of access to the territory. In Malaysia, in a declaration

and a law on immigration, AIDS is considered to be an infectious illness that could lead

to refusal of authorization of the right of entry. In Thailand, an application Regulation of

1986 concerning immigration included AIDS in the list of illnesses justifying a refusal of

entry. This regulation was modified in 1992, and now no longer mentions AIDS.

2.2. Health Control and Medical Certificate

232. Very numerous countries have laws that require a medical control at the border.

These may be laws on public health, for example, in the Dominican Republic or in El

Salvador. In the majority of cases, this requirement is found in laws concerning aliens, for

example, in the following countries: South Africa, Botswana, Burkina Faso, Burundi,

Equatorial Guinea, Ethiopia, Gabon, Kenya, Madagascar, Namibia, Rwanda, Senegal,

Swaziland, Tanzania, Uganda, Zambia, Zimbabwe, India, Malaysia, Nepal, Pakistan,

Philippines, Sri Lanka, Thailand, Argentina, Bahamas, Barbados, Belize, Chile,

Colombia, Ecuador, Jamaica, Mexico, Nicaragua, Trinidad and Tobago, Papua New

Guinea, Tonga, Albania, Bulgaria, Hungary, Slovakia, Macedonia and Georgia. Certain

laws specifically require an AIDS test (infra § 234).

233. Certain laws on immigration permit refusal of access to the territory or require

presentation of a medical certificate from persons coming from a country where an

epidemic is in progress. Such laws obtain in the following countries: Philippines, Fiji,

Croatia and Slovenia.


2.3. AIDS

234. Few of the studied laws expressly refuse entry to persons living with HIV/AIDS.

Nevertheless, such laws have been adopted, for example, in China 291 and in Moldova 292.

Certain laws on AIDS oblige foreigners to declare whether they are HIV positive or to

undergo a test. This is the case in Vietnam, Mongolia and Uzbekistan.

235. Certain states declare that they follow the policy of the WHO concerning travelling

restrictions (Burkina Faso, Jamaica and Croatia) or that they apply the principle of

reciprocity by requiring a test if the foreigner’s country of origin requires it (Nigeria,

Sri Lanka).

236. Only rarely do laws expressly forbid testing at the border. This is the case in Bolivia 293.

Certain countries, such as Kenya, Namibia or Indonesia, have not passed laws to this

effect, but indicate in circulars or texts of general policy that they are opposed to

systematic testing and to restrictions in immigration for persons living with HIV/AIDS.

3. Financial means237. Several countries have laws that state expressly that entry can be refused to aliens

who, because of their illness, present a risk of becoming a public liability. This provision is

found in the laws of the following countries: South Africa, Botswana, Lesotho, Malawi,

Namibia, Rwanda, Seychelles, Swaziland and Zimbabwe.

The refusal of entry for foreigners living with HIV/AIDS for economic reasons,

namely, the cost of treatment, had already been highlighted in Part II, where it had been

emphasized in particular that certain European countries refused the presence of

foreigners living with HIV/AIDS on their territory in certain cases, not because of the

existence of the virus or the illness, but more indirectly because of their inability to work

and to cover their needs financially as a result of the illness (supra, § 216).

291 Regulation of 26 December 1987 on surveillance and control measures applicable to AIDS and specificregulations to implement the law of the Peoples' Republic of China concerning border health control andquarantine (6 March 1989).

292 Law of 25 May 1993 on prevention of the illness HIV/AIDS. 293 Resolution no. 0660 for the prevention and surveillance of HIV/AIDS.


B. Residence1. Residence in general1.1. Public policy

238. Certain countries possess laws stating that the right to residence may be refused in

case of danger for public policy in general: Angola, Tunisia or Turkey. As for entry, this

leads to asking whether the concept of public health may be contained in the notion of

public policy permitting refusal of a residence permit for a foreigner.

1.2. Public health

1.2.1. Public health in general

239. The laws mentioned concerning entry which render undesirable foreigners suffering

from certain illnesses, especially contagious ones, also concern the residence of foreigners

since foreigners who are ill will be authorized neither to enter nor to reside in these

countries. Reference should be made for this point to the list of states mentioned above

in § 230.

240. Several laws examined permit refusal of the right to residence in case of threat to

public health: Lesotho, Nepal, Ecuador, Nicaragua, Albania, Slovakia, Czech Republic,

Macedonia, Latvia and Lithuania. On grounds of these general provisions, the right to

stay for persons living with HIV/AIDS could be restricted.

241. Other laws permit restriction of the right to free movement for foreigners, for various

reasons including health: Georgia, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and

Ukraine. This type of legal provision would also permit limiting the freedom of

movement of persons living with HIV/AIDS.

1.2.2. Health control and medical certificates

242. The right of residence depends on delivery of a medical certificate in certain

countries: Equatorial Guinea, Madagascar, Uganda, Seychelles, Cambodia, Nepal,

Pakistan, Argentina, Colombia, Hungary, Croatia, Georgia. This measure can also limit

the right to residence for foreigners living with HIV/AIDS insofar as this certificate might

be required to state whether the applicant is HIV positive or not.


1.2.3. AIDS

243. The legislations of certain states expressly provide for refusal of the right of residence

for foreigners who are HIV positive or who are suffering from AIDS.

In the first place, these were laws adopted in the framework of the campaign against

AIDS: China 294 Vietnam 295, Syria 296, Argentina 297, Panama 298, Bulgaria 299, Georgia 300,

Kazakhstan 301, Ukraine 302

These may also be laws adopted concerning immigration: Philippines 303, Estonia 304,

Slovakia and the Czech Republic 305, Moldova 306, and Russia 307. There is not always a law

on this question. Resolutions, directives or declarations have been issued in certain

countries, with the same end of refusing residence to foreigners living with HIV/AIDS:

India, Belize, Bolivia 308, Cuba 309, and Uzbekistan 310. In the latter country, the resolution

does not forbid the presence of persons living with HIV/ AIDS, but of nationals of

294 Regulation of 26 December 1987 on surveillance and control measures applicable to AIDS.295 Governmental decree no. 16/CP of 18 December 1992 regulating certain aspects of the measures of prevention and

of the campaign against the infection by HIV and against AIDS: residence of over three months. 296 Decree no. 17/t of 30 March 1991. 297 Law 237/98 on the Campaign against AIDS, which included the AIDS test in the medical control for foreigners. 298 Law no. 26 of 17 December 1992 giving measures for the prophylaxis and control of the Acquired Immuno-

Deficiency Syndrome (AIDS) and the spread of the Human Immuno-Deficiency Virus (HIV): residence of over oneyear.

299 Decree no. 4 of 2 April 1992 on the conditions and the procedure applicable to the testing of the infection by theAcquired Immuno-Deficiency Syndrome Virus: residence of over one month for students and workers.

300 Law of 21 March 1995 on the prevention of HIV/AIDS: residence of over one month. 301 Law of 5 October 1994 on the prevention of AIDS: without specification of the period of residence. 302 Law of 12 December 1991on the Prevention of AIDS and the social protection of the population: without

specification of the period of residence. 303 Instruction no. 14 of 17 February 1988 with Regulation on Immigration and Instruction no. 21 of 13 April 1988

with Regulation on Immigration. 304 Regulation of 21 September 1993 for the issue and extension of residence permits and employment permits to aliens. 305 Act no. 123/1992 of 4 March 1992 governing the stay of and residence of foreigners in the Czech and Slovak

Republics.306 Law of 10 November 1994 on the Legal Status of Aliens and Stateless Persons. 307 Federal law of 15 August 1996 on the procedure for exit from the Russian Federation and entry into the Russian

Federation and Law no. 38 of 30 March 1995 on the prevention of the spread in the Federation of Russia of theaffection caused by the Human Immuno-Deficiency Virus (Infection by HIV).

308 Interministerial Resolution 0415/89. 309 Ministerial Resolution no. 144 of 11 June 1987. 310 Resolution no. 12 of 17 November 1992 introducing preventive measures against the introduction and spread of

quarantinable diseases and of AIDS into the Republic of Uzbekistan.


countries where AIDS is rife if they cannot prove they have been tested. The list of

countries concerned mentions eight countries of the European Union, as well as

numerous countries of Africa and America.

For certain states, information has been collected according to which residence

could be refused to foreigners living with HIV/AIDS, without its being possible to

identify the legal or reglementary basis for this, presuming it exists. This is the case for the

following countries: Colombia, Chile, Dominican Republic, El Salvador, Mexico,

Trinidad and Tobago, Papua New Guinea, Samoa and Lithuania.

In certain countries, legislations to the end of refusing residence for foreigners living

with HIV/AIDS formerly existed but have since been modified or abolished, as in

Thailand 311 or Costa Rica 312.

244. It is important to emphasize that the residence restrictions applicable to foreigners

living with HIV/AIDS concern mainly the right to long-term residence and not short

stays. Thus, the restrictions concern only long periods of residence of over one year

(China, Panama, India, Trinidad and Tobago), of over three months (Korea, Vietnam,

Kazakhstan, Cuba, Russia) or for an unspecified period (Ukraine, Belize, Philippines,

Slovakia and the Czech Republic, Colombia, Dominican Republic, Mexico, Papua New

Guinea, Samoa, Lithuania, Chile: foreigners other than tourists). However, the test is

sometimes required even in the case of a short-term stay: Uzbekistan and Georgia (over

one month), Bulgaria (any length of stay), Bolivia and El Salvador.

245. As concerns the marriage of foreigners, it should be noted that in Syria 313 foreigners

wishing to marry a national must undergo an AIDS test, and that in Vietnam 314 it is

forbidden for an HIV positive foreigner to marry a national.

311 Regulation of 26 August 1986 issued for the application of the 1979 Immigration Act modified by the Ruling of 20February 1992 with the same title.

312 Decree no. 18781-S-G of 19 January 1989 abrogated by the decree no. 20202-S-G of 17 January 1991. 313 Decree no. 17/t of 30 March 1991. 314 Decree no. 16/CP of 18 December 1992 regulating certain aspects of the measures of prevention and of the campaign

against infection by the HIV virus and AIDS.


1.3. Financial means

246. Certain laws provide for refusal of the right to residence for foreigners who risk

becoming a public financial liability because of their illnesses. This is the case in Lesotho.

247. As concerns medical treatment, it should be noted that in certain countries such as

Sri Lanka, the hospitals refuse to admit HIV positive foreigners. By contrast in Georgia,

the application of the law on the Prevention of HIV/AIDS of 2 March 1995 should produce

the right to medical assistance for foreigners even if they are HIV positive.

2. Particular categories2.1. Workers

248. In several countries, foreigners are required to produce a certificate attesting they are

HIV negative in order to obtain a work permit: Angola, Oman, Seychelles, Malaysia,

Syria, Belize, Papua New Guinea, Bulgaria, Estonia, Ukraine. It has not always been

possible to identify the legal basis for this measure. In certain countries, this measure has

a clear basis in a legal text: Syria 315, Bulgaria 316, Estonia 317 and Ukraine 318.

2.2. Students

249. Testing is required from students by the legislations of several states: Syria 319,

Cuba 320, Bulgaria 321, and Ukraine 322.

315 Regulatory Decree no. 36T of 26 October 1987 of the Health Ministry. 316 Decree no. 4 of 2 April 1992 on the conditions and the procedure applicable to the testing of the infection by the

Acquired Immuno-Deficiency Syndrome virus.317 Regulation of 21 September 1993 for the issue and extension of residence permits and employment permits to aliens. 318 Law of 12 December 1991 on the prevention of AIDS and the social protection of the population. 319 Regulatory Decree no. 36/T of 26 October 1987 of the Health Ministry. 320 Ministerial Resolution no. 144 of 11 June 1987. 321 Decree no. 4 of 2 April 1992 on the conditions and the procedure applicable to the testing of the infection by the

Acquired Immuno-Deficiency Syndrome virus. 322 Law of 12 December 1991 on the prevention of AIDS and the social protection of the population.


In certain states, it has not been possible to identify the legal basis for the testing

required of students, presuming it exists: for example, in Poland or in Hungary. Certain

countries require testing for their own national students who have received grants when

they return after having studied abroad (Syria).

2.3. Refugees

250. In several states, refugees may have to undergo a medical control. The texts do not

specify whether the AIDS test forms part of this examination. A medical control is

required for refugees in the following countries: Turkey, Bulgaria, Czech Republic,

Slovakia, Belarus, Lithuania, Tajikistan and Ukraine.

Generally, legislations on refugees provide for refusal of this status if the candidate

represents a threat for public policy in general and that the refugee may be expelled for

the same reason (Burundi, Senegal, Turkey, Bulgaria, Croatia and the Czech Republic).

By contrast, public health is rarely mentioned as a reason for refusing the right to asylum

or as justification for expulsion. However, in Lithuania the right to asylum may be legally

refused if the refugee is ill.

Sometimes, medical assistance is assured for refugees and candidates for refugee status:

Bulgaria, Czech Republic, Slovakia, Croatia, Macedonia, Slovenia, Russia, Tajikistan

and Ukraine.

C. Expulsion1. Public policy251. In very numerous states, the legislations on immigration provide for the possibility of

ordering expulsion, not specifically in case of threat to public health, but more generally

if the public policy or welfare are endangered. This is the case in the following countries:

Angola, Botswana, Burundi, Rwanda, Seychelles, Swaziland, Tunisia, Zambia, Zimbabwe,

Indonesia, Thailand, Bahamas, Jamaica, Venezuela, Samoa, Latvia. Although it is

couched in general terms, this kind of provision can be used as grounds for expulsion of

foreigners who are HIV positive or who suffer from AIDS. This has been observed to be

true as regards, for example, Indonesia or Samoa.

2. Public health2.1. Public health in general

252. In several states, legislations on immigration permit expulsion in case of danger to


public health. The following countries may be cited by way of examples: Madagascar,

Malawi, Malaysia, Sri Lanka, Vietnam, Bulgaria, Moldova, Belarus, Georgia, Kazakhstan,

Kyrgyzstan, Tajikistan, Turkmenistan, and Ukraine.

These provisions are used to justify expulsion orders for foreigners who are HIV

positive or who suffer from AIDS. This is the case in Bulgaria, where foreigners living

with HIV/AIDS have been expelled on these grounds.

253. Few states have legislations providing for taking into account the state of health of

the foreigner when considering an expulsion order. However, Polish legislation contains a

provision whereby a foreigner’s state of health must be taken into account when

considering whether he should be arrested prior to expulsion.

254. Some laws, such as those of Macedonia or of Slovenia, stipulate that expulsion must

be avoided if it will lead to a risk of inhuman treatment in the country of destination.

Expulsion of a foreigner who is HIV positive or suffering from AIDS may constitute

inhuman treatment inasmuch as the sick person might not benefit from the possibility of

receiving treatment in the country of destination, but might do so in the state in which

he is residing until the expulsion order is executed. In this connection, reference should

be made to the jurisprudence of the European Court of Human Rights, and more

particularly to the ruling D v. United Kingdom (supra, §§ 76 et seq.).

2.2. AIDS

255. A number of states have legislations that expressly provide for the expulsion of

foreigners living with HIV/AIDS. This is the case for the following countries: Oman (the

law concerns confirmed cases of AIDS) 323, China 324, Syria 325, Cuba 326, Kazakhstan 327,

323 Ministerial Resolution no. 1 of 19 January 1991 on the national programme for the prevention of the AcquiredImmuno-Deficiency Syndrome (AIDS).

324 Regulation of 26 December 1987 on surveillance and control measures applicable to AIDS. 325 Decree no. 17/t of 30 March 1991. 326 Ministerial Resolution no. 144 of 11 June 1987. 327 Law of 5 October 1994 on the prevention of AIDS.


Moldova 328, Uzbekistan 329, Russia 330, Ukraine 331. Expulsion is sometimes provided for if

the foreigner refuses to undergo the AIDS test: Belarus 332, Kazakhstan 333, and Mongolia 334.

328 Law of 25 May 1993 on the prophylaxis of AIDS. 329 Resolution no. 12 of 17 November 1997 introducing preventive measures against the introduction and spread of

quarantinable diseases and of AIDS in the Republic of Uzbekistan. 330 Federal Law no. 38 of 30 March 1995 on the prevention of the propagation in the federation of Russia of the affection

caused by the Human Immuno-Deficiency Virus (Infection by HIV). 331 Law of 12 December 1991 on the prevention of AIDS and the social protection of the population. 332 Law of 18 June 1993 on public health. 333 Law of 5 October 1994 on the prevention of AIDS. 334 Law of 1 March 1994 on the prevention of the Acquired Immuno-Deficiency Syndrome.


III Third conclusions (third countries’national laws)256. As regards the provisions concerning the free movement of persons living with

HIV/AIDS, a distinction can be made between three types of measures.

The first category of measures is formed by provisions that are manifestly contrary to

the principles of international law. This includes measures adopted in order to forbid HIV

positive foreigners to marry a national (Syria, Vietnam). These provisions are in

contradiction to article 23.2 of the International Covenant on Civil and Political Rights

(1966), to article 17.2 of the American Convention on Human Rights (1969), to article

18.1 of the African Charter on Human Rights and Peoples’ Rights (1981) 335 and to

article 16 of the Universal Declaration of Human Rights (1948) 336.

The second category of measures contains those that are contrary to the principle of

proportionality. Several states have legislations expressly permitting measures limiting

access to their territory and residence for persons living with HIV/AIDS and expressly

permitting their expulsion (Oman, China, Philippines, Syria, Vietnam, Cuba, Panama,

Bulgaria, Czech Republic, Slovakia, Estonia, Georgia, Kazakhstan, Moldova, Uzbekistan,

Russia, Ukraine). Furthermore, the information obtained on practice shows that even

when legislations do not exist, persons living with HIV/AIDS are refused entry or

residence, and are expelled. In principle, such practices, which generally appeal to the

protection of public policy or of public health, can be judged to be contrary to the

principle of proportionality (supra §§ 13 to 19 and 87). Countries with restrictive measures

against free movement of persons living with HIV/AIDS, based on legislations or practice,

are mentioned in bold face in the summary table found in annexe III, 2 (p. 307).

The third category of measures are the positive measures adopted by states so as to

limit or prohibit offences to the free movement of persons living with HIV/AIDS.

Although they are rare, these provisions must be mentioned insofar as they show the will

335 However, this article does stipulate that the family shall be protected by the state ‘which shall take care of itsphysical health and moral [welfare]’.

336 Nevertheless, this declaration has no character of legal binding obligation.


of certain states not only to abstain from any limitation of the free movement of persons

living with HIV/AIDS (negative action), but also to act concretely against such limitation

(affirmative action). This leads to the question of long-term action (infra, § 561).

These measures are particularly those forbidding the systematic testing of foreigners

at the border (Bolivia or, without laws, Kenya, Namibia and Indonesia), providing for

guaranteed medical assistance or intending generally to campaign against discrimination

with regard to vulnerable groups (Gabon). Countries that exclude restrictions, by means

of legislations or declarations that are put into practice, are mentioned in italics in the

summary table found in annexe III, 2 with the sign (+) indicating that these countries are

taking affirmative action against restrictions of the free movement of persons living with

HIV/AIDS.

It is sometimes difficult to define the complexity of the reality. Some countries may

be found in both the second and the third categories. Thus, the same country may adopt

anti-discriminatory measures that exclude systematic testing and hence the test at the

border, and also discriminatory measures that permit expulsion of persons living with

HIV/AIDS (Bolivia, Colombia, Indonesia).


IV Country-by-country examination of legislation in third countries257. This section lists in detail, country by country, the legislation and the practice

concerning free movement which may affect persons living with HIV/AIDS. The

countries are classed by geographical regions and within each region according to French

alphabetical order. (In this English-language translation the text has not been re-arranged

in accordance with English alphabetical order in order that the paragraph numbers and

notes might correspond to the French original.)

As far as possible, and according to the information it has been possible to collect, a

distinction will be made between entry to the territory on the one hand, and on the

other, residence and expulsion.

A. Africa 336b

1. South AfricaA. Entry

258. Article 7 (1) (IV) of the law on foreigners of 1991 states that if the immigration

officer suspects the foreigner to be suffering from an illness or infirmity which might

justify a refusal to admit him to the territory, he may be required to undergo a medical

examination.

Article 39 of this law lists the cases whereby foreigners may be refused entry to the

territory. This may occur if the foreigner may become a public charge on account of an

illness, or else if the person suffers from a contagious illness or is carrier of a virus.

On the basis of article 56 (c) of the law on foreigners, contagious illnesses and

viruses which may lead to refusal of entry to the territory may be dealt with by a decree

issued by the minister. A governmental opinion of 30 October 1987 337 included in the list

336b For an attempt to classify the attitude of African countries according their attachment to Civil law, Commonlaw or Muslim law, see ALKAS P.H. and SHANDERA W.X., ‘HIV and AIDS in Africa. African policies inresponse to AIDS in relation to various national legal traditions’, The Journal of Legal Medicine, 17, 527-546(1996).

337 IDLH, 1989, 40 (1), p. 59.


of persons forbidden to enter the South African Republic persons living with HIV/AIDS.

It appears that this restriction was originally aimed at miners from Mozambique, Malawi

and Zimbabwe 338. However, an opinion of 13 September 1991 339 struck HIV/AIDS off

the list of illnesses barring a foreigner from the territory. Since this date, it would appear

that persons living with HIV/AIDS are no longer the object of discrimination for their

entry into the country 340.

Nevertheless, E. CAMERON observes that the rules on immigration, including the

announcement of 1987 which created a discrimination, were not applied, and that the

change in the ruling was thus not so much a victory for human rights as the realization on

the part of the government that coercive measures do not necessarily stop the

propagation of the illness. The same author states that other forms of discrimination

subsist against persons living with HIV/AIDS 341: refusal of treatment, abuse in insurance

and work. Actions and infomations are being developed against those discriminations 341b.

B. Residence and expulsion

259. The provisions cited above regarding entry also concern residence inasmuch as

undesirable foreigners may neither enter nor reside in the country.

C. Miscellaneous

260. The problem of the importation of illnesses is still alive to-day. This question is dealt

with by the International Health Regulations of 1969 and 1974, which contain no

reference to the HIV virus or AIDS, nor to other illnesses. This is why the health

authorities have established a policy concerning transport in South Africa of persons with

a contagious illness. This policy was examined from 1 April to 31 July 1997 342. It is

338 Information communicated by Lawyers for Human Rights on 27 May 1997; see also ZACKIE ACHMAT,‘Création d’un réseau sud-african’, in Réseau africain sur l’éthique, le droit et le VIH, actes de la consultationinterpays, Dakar, 27 June – 1 July 1994, p. 59.

339 IDLH, 1992, 43(1), p. 33.340 Information communicated by Lawyerss for Human Rights on 27 May 1997 and by Department of Health,

National HIV/AIDS and STD Directorate, on 20 January 1998.341 E. CAMERON, ‘Human Rights, Racism and AIDS: the New Discrimination’, in South African Journal on

Human Rights, Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg, 1993.341b D. FINE, M. HEYWOOD, A. STRODE: HIV/AIDS and the law, published by AIDS law project and Lawyers for

human rights, South Africa, 1997.342 Information communicated by the Embassy of South Africa in Brussels on 14 May 1997.


problematic and should be revised. The proposed text expressly states HIV/AIDS among

the illnesses concerned.

If the patient is considered as having a contagious illness, he may not, in principle,

be transported on a commercial flight with other passengers. It is stipulated that the crew

must inform the control tower at the airport of destination when they have a sick

passenger on board. Appropriate measures must be taken in order to avoid contact

between the sick person and the other passengers. On arrival, the health official will be

allowed to come on board and he must take the necessary measures in order to disinfect

the aeroplane.

It should be noted that the law on foreigners contains provisions that are applicable

to captains of ships, who may be required to provide a report mentioning the illnesses

which may have appeared during the voyage, suspected or confirmed cases of illnesses,

the names of the persons suffering from them, and the nature of the illnesses.

2. AngolaA. Entry

261. Law of 1994 on the Legal Status of Aliens does not provide for possible refusal of entry

for reasons of public health.

Decree 48/94 of 25 November 1994 stipulates that when application is made for a

visa for medical reasons, the applicant must produce proof of his admission to a hospital,

of the date of treatment and of sufficient financial means.


262. The law of 1994 does not envisage refusal of residence for reasons of health.

Authorization of residence may be revoked if the foreigner offends public policy or

national security. By contrast, public health is not mentioned explicitly.

263. Since 31 January 1997, a certificate of HIV negative status must be presented in

order to obtain a residence visa for work 343.

264. In the law of 1994, expulsion is provided for in case of threat to national security

and to public policy, but not in case of threat to public health.

343 Information confirmed by the Embassy of Angola in Brussels on 8 July 1997.


3. BotswanaA. Entry

265. Foreigners may be required to undergo a medical examination on the basis of article

7(b) of the Immimgration Act of 1966, which also states that entry and residence may be

refused to foreigners if they suffer from illnesses that may justify their exclusion from the

territory (unless they possess an authorization and comply with the conditions of this

authorization). Foreigners may also be refused access to the territory if they risk becoming

a public charge because of their illness (article 7(a) and (c)).

However, there are no specific provisions applicable to the entry and residence of



266. The provisions affecting residence are the same as those concerning entry.

267. Expulsion is provided for by the legislation on foreigners in case of necessity for the

public good but not specifically in case of threat to public health.

4. Burkina FasoA. Entry

268. Law no. 23/94/ADP of 19 May 1994 promulgating the Code of Public Health 345

contains in its articles 123 to 125 provisions on health control at the border.

Article 123 states that ‘the international health regulations will be applied to any

aircraft or person in a situation of “international travel”. The same ruling shall be applied

to trains and road transport coming from abroad’. This article deals with so-called

quarantine illnesses (plague, cholera, yellow fever). In order to obtain an entry visa,

foreigners must be vaccinated against yellow fever, and vaccination against cholera is

recommended. By contrast, no information on HIV status is asked of foreigners entering

the country, in conformity with the recommendations of the WHO 346.

Article 125 states that any person refusing to comply with urgent demands made to

him by a health control service at the border may be fined or imprisoned.

344 Information communicated by the Embassy of Botswana in Brussels on 26 June 1997.345 IDLH, 1995, 46 (4), p. 449.346 Information communicated by the Embassy of Burkina Faso in Brussels on 12 September 1997.


269. Entry restrictions have not been expressly provided for for persons living with

HIV/AIDS 347.


270. In order to obtain a residence permit, the medical requirements involve obligatory

vaccination against yellow fever and a recommendation to be vaccinated against cholera.

There is no requirement as regards testing for the HIV virus or AIDS.

5. BurundiA. Entry

271. The legislation on immigration contains restrictions concerning public health.

In order to obtain authorization to enter Burundi, foreigners must possess a medical

certificate established less than three months previously by a medical doctor, attesting

that the bearer is free of all contagious illnesses 348. Foreigners may be refused entry

if they do not produce the documents required and if they are suffering from a

contagious illness 349.

However, information received suggests that the Burundian government does not use

these general provisions as grounds for refusing access to the territory to persons living

with HIV/AIDS 350.


272. Expulsion is provided for in general terms in case of danger for public policy and

national security 351. Public health is not cited expressly as grounds for expulsion.

273. Foreigners recognized as political refugees may be expelled from Burundi ‘only in

such cases in which they offend public order or national security’ 352.

347 This information is drawn from the list established by The Laboratory Center for Disease Control (Canada) in June 1997, and was confirmed by the Embassy of Burkina Faso in Brussels on 12 September 1997.

348 Decree-Law no. 1/23 of 9 July 1982 regulating the access, stay, establishment and removal of foreigners to, in andfrom Burundi.

349 Article 4 of the Decree-Law of 9 July 1982, o.c., and article 4 of the Decree-Law no. 1/007 of 20 March 1989regulating the access, stay, establishment and removal of foreigners to, in and from Burundi.

350 Information communicated by the Embassy of Burundi in Brussels on 26 March 1997.351 Article 26 of the Decree-Law of 20 March 1989 cited above.352 Article 31 of the Decree-Law of 9 July 1982 cited above.


6. CameroonA. Entry

274. Law no. 90/043 of 19 December 1990 on immigration does not include a condition

concerning public health in the conditions of access.


275. Nor does Law no. 90/043 contain provisions concerning public health as regards

residence and expulsion.

7. EthiopiaA. Entry

276. The legislation on immigration contains rules concerning public health.

Foreigners wishing to enter Ethiopia must produce a medical certificate showing they

have received the immunisations required by the minister 353.

‘Undesirable’ foreigners can be refused entry (article 8 of the law). This notion is

defined by article 3 (11), which does not mention offense to public health, but rather

offense to state security or becoming a public charge.

Nevertheless, the authorities have taken no specific measures concerning the

movement of persons living with HIV/AIDS 354 and no restrictions concerning entry have

been expressly provided for 355.


277. Undesirable foreigners may be the object of an expulsion order.

8. GabonA. Entry

278. All travellers must hold a medical certificate in order to enter the country 356.

353 Article 6 c) of the proclamation no. 271 of 1969 regulating the issuance of travel documents and visas, andregistration of foreigners in Ethiopia.

354 Information communicated by the Department of Immigration in Ethiopia.355 Information drawn from the list established by The Laboratory Center for Disease Control in June 1997.356 Information drawn from the list established by The Laboratory Center for Disease Control in June 1997.



279. A study published in 1991 speaks of there being no restrictions for persons living

with HIV/AIDS as concerns residence 357.

C. Miscellaneous

280. It must be emphasized that according to article 38 of the Order no. 1/95 Giving

Guidelines for Health Policy in the Gabonese Republic, the policy of protection of vulnerable

groups must ensure in particular a campaign against exclusion and discrimination. Insofar

as migrants and persons living with HIV/AIDS may be considered to constitute a

vulnerable group, this provision could concern them.

9. GambiaA. Entry

281. There is no legislation forbidding foreigners living with HIV/AIDS to enter the

country 358. The Public Health Act 359 does not contain provisions concerning HIV/AIDS.

Although there is no legislation in Gambia permitting discrimination against carriers

of the AIDS virus, the state officials must take into account the consequences of their

decisions for public health, including decisions concerning granting the right of entry to

the territory 360.


282. Any person suffering from any communicable disease that may be prescribed as such

by the Minister shall be prohibited immigrant 361.

357 Restriction of entry and residence for people with HIV/AIDS, a global survey, Archiv für Sozialpolitik, ordered byDeutsche AIDS-Hilfe, Berlin, Frankfurt, 1991.

358 Information communicated by the Ministry of Health in Gambia on 12 May 1997.359 Public Health Act, ch. 535.360 Information communicated by the Embassy of Gambia in Brussels on 3 April 1997.361 Article 13b of the Immigration Act of 1990.


10. Equatorial GuineaA. Entry

283. All foreigners entering the Republic of Guinea are required to present at their arrival

a valid international health record, recognized by international conventions or the

rulings in force 362. There is no specific restriction of entry for persons living with

HIV/AIDS 363.


284. Applications for a resident’s card must be accompanied by a medical certificate

delivered by an approved doctor less than three months previously. The same condition

applies to applications for renewal of residents’ cards 364. It should be noted that foreigners

from countries that have signed conventions of reciprocity with the Republic of Guinea

are exempted from the requirement to hold residents’ cards.

285. Expulsion for reasons of public health is not expressly provided for. By contrast, this

measure is possible when the foreigner is declared to be personally undesirable 365 or when

he constitutes a threat for public policy 366.

11. KenyaA. Entry

286. On the basis of article 3 (1)(c) of the Immigration Act of 1967, foreigners may be

considered as being barred from the territory if they refuse to undergo a medical

examination. The same is the case for those who, after having been examined by a

medical inspector, are declared to be undesirable for medical reasons.

No entry restriction has been adopted specifically with regard to travellers living

with HIV/AIDS 367. Two elements permit deduction from the absence of specific

362 Article 14 of Law L/94/019/CTRN setting out the conditions for the entry and stay of foreigners in the Republic of Guinea.

363 Information drawn from the list established by The Laboratory Center for Disease Control in June 1997.364 Articles 38 and 39 of Law L/94019/CTRN cited above.365 Article 64 of Law L/94/019/CTRN cited above.366 Article 67 of Law L/94/019/CTRN cited above.367 This information is drawn from the list established by The Laboratory Center for Disease Control in June 1997.


legislation that this general legislation is not used to limit the free movement of persons

living with HIV/AIDS. On the one hand, article 81 (1) of the constitution guarantees

freedom of movement. This right may be suspended in the interests of public security or if

public policy demands it. On the other hand, Kenya considers that the measures

restricting travel adopted by certain states with regard to people who are HIV positive or

who are suffering from AIDS are contrary to the Universal Declaration of Human Rights

inasmuch as the simple presence of the person on the territory does not constitute a

danger. For this reason, Kenya condemns this type of measure 368.


287. Refer to the provisions mentioned in § 286.

12. LesothoA. Entry

288. The immigration officer may, in order to authorize entry, demand the presentation of

a medical certificate proving the absence of illness 369. This general legislation could be

used concerning AIDS. However, this assertion is not confirmed in practice 370.


289. Residence may be refused to foreigners who might compromise public health or

become a public charge on account of an illness from which they might be suffering 371.

13. MadagascarA. Entry

290. According to the legislation, an international vaccination card must be presented as

a condition for admission 372. There are no restrictions for entry for persons living with

HIV/AIDS 373.

368 AIDS in Kenya – Socioeconomic Impact and Policy Implications, US Agency for International Development,AIDSCAP/Family Health International, 1996, p. 152.

369 Article 13 (2) of the Aliens Act of 1968.370 Information provided by the Lesotho Embassy in Brussels on 4 December 1997.371 Annexe 1 of the Aliens Act.372 Article 9 for non-immigrants and article 13 for immigrants of Decree no. 94-652 of 1994, which establishes the

norms for applying Law no. 62-002 of 16 June 1962 establishing the organization and control of immigration toMadagascar.

373 This information is drawn from the list established by The Laboratory Center for Disease Control in June 1997.



291. Foreigners who wish to reside in Madagascar for over three months must possess a

resident’s card delivered by the Minister of the Interior 374. Among the conditions for

delivery of the resident’s card figures production of a medical certificate in the conditions

fixed by the Minister of Health 375.

292. Article 13 of the law of 1962 states that foreigners admitted for temporary residence

may be expelled if their presence on the territory constitutes a threat for the protection

of health.

14. MalawiA. Entry

293. Article 4 (1)(e) of the Immigration Act of 1964 states that foreigners may be refused

admittance to the territory if they are suffering from an illness that can justify refusal

unless they possess express authorization. In case of doubt, the immigration officer may

require a medical examination (article 13). The illnesses to which article 4 (1)(e) refers

are listed in article 11 of the immigration reglementation, which does not mention

HIV/AIDS. There does not seem to be any restriction of entry applicable to persons

living with HIV/AIDS 376.

Nevertheless, mention should be made of article 4 (1)(c) according to which

foreigners may also be refused entry to the territory if they might become a public charge

on account of the illness from which they are suffering. This provision does not apply to

nationals of neighbouring countries who have signed a convention with Malawi.


294. Article 23 of the immigration Regulation states that foreigners applying for a

permanent residence permit must produce a medical certificate.

374 Article 6 of the Law of 1962.375 Article 22 of the Decree of 1994.376 This information was communicated by the Ministry of Health and Population of Malawi on 6 October 1997.

It corresponds to the list established by The Laboratory Center for Disease Control in June 1997.


295. An expulsion order may be established for reasons of public health on the basis of

article 39 (2)(b) of the Immigration Act. A study published in 1991 contains information

to the effect that persons living with HIV/AIDS are not expelled 377.

296. The legislation on refugees of 8 May 1989 provides for an exception to the

prohibition of expulsion of foreigners who have obtained refugee status in case of danger

for the security of Malawi or of penal condemnation; public health is not expressly

mentioned.

15. MaliA. Entry

297. There are no laws forbidding the entry of persons living with HIV/AIDS 378.


298. In order to obtain a visa, vaccination against yellow fever is obligatory. As regards

the VIH virus or AIDS, it would seem there is no particular requirement, since there is

no law prohibiting the residence of persons living with HIV/AIDS 379.

16. NamibiaA. Entry

299. Foreigners wishing to enter the country must convince the immigration officer that

they do not form part of the category of foreigners prohibited access to the territory 380.

The law cites in the list of foreigners who may be barred from the territory those suffering

from contagious illnesses or carriers of a virus, as well as people who may become a public

charge because of their illness 381.

300. The minister may decree rulings concerning norms for the medical control of

foreigners and for the contagious illnesses that would bar foreigners from the territory 382.

377 Restrictions of entry and residence for people with HIV/AIDS, o.c.378 Information communicated by the Embassy of Mali in Brussels on 19 March 1997.379 Information communicated by the Embassy of Mali in Brussels on 19 March and 6 May 1997.380 Article 7 of the Immigration Control Act of 1994.381 Article 39.382 Article 58.


301. Paragraph 4.8 of the National Policy on AIDS 383 states that the Namibian

authorities may not impose restrictions concerning immigration and must encourage the

other authorities to do the same. Paragraph 4.1.2.2 states in a general manner that the

systematic testing of certain groups is unjustified.

302. The modification in 1987 of the legislation on the admission of persons to the

Republic, which barred persons suffering from the HIV virus or AIDS from the territory,

does not apply in Namibia 384.


303. The provisions permitting prohibition of access to the territory for sick foreigners

(supra point a) also concern the right to residence. If foreigners are suspected of suffering

from an illness that can bar them from the territory, they may be obliged to undergo

a medical control 385.

Article 21 (1) (g-i) of the Namibian Constitution states that everyone has the

right to free movement in Namibia, to reside and settle in the country and to return

to Namibia.

The national policy with regard to AIDS is opposed to restrictions.

C. Miscellaneous

304. Captains of ships must provide, if requested, a report listing the cases of illnesses that

have appeared during the voyage, the cases of illnesses suspected or known, the names of

the sick persons, and the nature of their illnesses (article 15 (1)(d)).

17. NigeriaA. Entry

305. Article 49 of the Immigration Act of 1963 states that the immigration officer may

refuse entry to foreigners who are undesirable for medical reasons.

383 Positive Responses and Choices: Policies and Guidelines for HIV/AIDS Prevention and Control, December 1991.384 M. FIGUERA, ‘AIDS, the Namibian Constitution and Human Rights – an Overview’, South African Journal

on Human Rights, Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg, 1993, p. 35.

385 Article 8, e) of the Law of 1994, cited above.


Restrictions of entry may be applied to foreigners living with HIV/AIDS on the basis

of the principle of reciprocity, if the foreigners’ states apply the same restrictions to

Nigerian nationals 386.


306. Article 17 states that foreigners suffering from a mental illness may be the object of

an expulsion order. This provision does not allude to other types of illnesses.

307. The prohibition of expulsion of refugees may find an exception in case of danger for

the security of Nigeria 387. Public health is not expressly mentioned as an exception to the

principle of prohibition of expulsion of refugees.

18. OmanA. Entry

308. Foreigners intending to take up employment in the private sector must have an

AIDS test on their arrival. This test must be renewed every two years for the renewal of

their work permit 388.


309. A resolution 389 states that the groups considered to be particularly at risk, according

to the criteria of the Technical Committee for the Campaign against AIDS, must be

made to undergo the tests that are necessary to prove the absence of infection. The same

resolution states that ‘foreigners resident in the country who are suffering from confirmed

AIDS must be expelled to their own countries in order to undergo medical treatment

with the help of specialized authorities’.

386 D.C. JAYASURIYA, AIDS, Health, policy and Legal Aspects. Commonwealth Secretariat, London, 1992, p. 29.387 Article 1 of the Decree of 1989 on Refugees.388 This information is drawn from the list established by The Laboratory Center for Disease Control in June 1997

and Le tableau récapitulatif des dispositions prises par certains pays envers les voyageurs internationaux concernant lestests de dépistage des anticorps anti-VIH (sida) [The summarizing table giving the provisions adopted by certaincountries with regard to international travellers concerning tests for antibodies against the HIV (AIDS)],established by the Federal Department of Foreign Affairs in Switzerland.

389 Ministerial resolution no. 1 of 19 January 1990 on the national programme for the prevention of the AcquiredImmuno-Deficiency Syndrome (AIDS), IDHL, 1992, 43(1), p. 37.


19. UgandaA. Entry

310. Among the foreigners whose presence in Uganda is illegal are those who refuse to

undergo a medical examination and those who declare that they are suffering from a

contagious illness that renders their presence in Uganda dangerous 390.

Nevertheless, according to information received, there is no specific legislation

applicable to persons living with HIV/AIDS, and their freedom of movement is not

restricted 391. This information is confirmed by declarations made during a conference

(infra § 312).


311. The ruling on applications for entry permits and residence permits states that

foreigners who have lived in the country for fifteen years may request a life residence

permit. It states further that such foreigners must produce a medical certificate proving

they are in good health.

C. Miscellaneous

312. A conference held on 18 May 1994 at Kampala on Juridical and Ethical Aspects of

the HIV/AIDS Epidemic in Uganda recommended that obligatory testing should not be

practiced generally. The Conference resolved that no AIDS test should be practiced

without the person’s prior informed consent 392.

20. RwandaA. Entry

313. The law contains provisions concerning health conditions required for entering the

territory 393. Foreigners must produce medical certificates of the vaccinations prescribed by

international conventions and established either according to the model adopted by the

World Health Organization or else according to the provisions decreed by the Minister of

390 Guidelines for Issuance of Entry Permits, Certificates of Residence and Other Passes, document communicated bythe Embassy of Uganda in Brussels.

391 Information communicated by the Embassy of Uganda in Brussels on 28 August 1997. 392 African network on ethics law and HIV, Proceedings of the intercountry consultation, Dakar, Senegal,

27 June – 1 July 1994, p. 75. 393 Article 2 of the Law of 1963 concerning the immigration police and the conditions of entry and stay.


public health. This rule does not concern persons living with HIV/AIDS, since it regards

vaccination certificates.

The law cites among undesirable foreigners who may not enter Rwanda foreigners

suffering from contagious illnesses specified by a ministerial decision. Foreigners are also

declared to be undesirable if, because of their illness, they cannot guarantee sufficient

normal means of subsistance, as well as their dependants 394. However, according to a study

made in 1997, there are no restrictions of entry for persons living with HIV/AIDS 395.


314. Foreigners suffering from an illness or those who may become a public charge

because of their illness may be considered to be undesirable and be refused the right of

residence on these grounds 396. Undesirable foreigners or those who compromise public

peace or policy may be expelled 397.

21. SenegalA. Entry

315. There are restrictions of entry concerning public health 398. Nevertheless, these speak

of the requirement for international vaccination certificates and thus do not concern

HIV/AIDS. HIV testing performed without the consent of the individual is theoretically

forbidden. Indeed, the Senegalese Constitution, criminal law, the Declaration of Human

Rights, the African Charter on Human and People’s Rights ratified by Senegal, set down

the principle of physical integrity of the human being 399.

B. Residence and expulsion.

316. The provisions of the 1971 Decree on foreigners make no mention of public health.

317. It is stated that refugees may be expelled for reasons of national security or public

policy, but not expressly for reasons of public health 400.

394 Article 13 of the Law of 1963 cited above.395 This information is drawn from the list established by The Laboratory for Disease Control in June 1997.396 Article 13 cited above.397 Article 18 of the law of 1963 cited above.398 Decree no. 71-860 of 28 July 1971 concerning the conditions for the admission, stay and establishment of foreigners.399 A. SOW/SIDIBE, Le droit à l’épreuve du VIH, 1er colloque international Sida et religion, 31 octobre –

2 novembre 1997, p. 9.400 Law no. 68-27 of 24 July 1968 giving refugee status, article 4.


22. SeychellesA. Entry

318. The law states that foreigners are undesirable if they are suffering from or are

carrying illnesses, and if they are capable of infecting other people with their illness 401.

Foreigners who might become a public charge because of the illness from which they are

suffering are also undesirable 402. Nevertheless, a provisional permit may be granted to

undesirable foreigners 403. Furthermore, the minister can exempt certain foreigners 404.

The immigration officer is empowered to require of any person suspected of being an

undesirable foreigner, on account of his physical condition, to undergo a medical

examination. The text states that if the foreigner refuses to undergo a medical

examination or to undergo any test connected with the medical examination he may be

fined or imprisoned 405.


319. Applications for residence permits must be accompanied by a medical certificate

showing that the applicant and the members of his family are not suffering from

infectious and contagious illnesses and are in good health 406. The request for a permit in

order to exercise a lucrative profession is considered by the minister taking different

elements into account, including the applicant’s state of health and that of the members

of his family 407.

320. It would appear that this general legislation is used to impose restrictions on persons

living with HIV/AIDS. It seems that a distinction is made not only on the basis of the

length of stay but also of the type of work and of sector concerned (public or private).

Visitors who must work for the government or for a para-governmental body must

produce a certificate proving they are HIV negative. Those who intend working in the

401 Article 19 of the Immigration Decree of 1981.402 Idem.403 Article 18 of the Decree of 1981 cited above.404 Article 19 of the Decree of 1981 cited above.405 Article 28 of the Decree of 1981 cited above.406 First annexe to the Decree of 1981 cited above. 407 Article 17 of the Decree of 1981 cited above.


private sector, diplomatic staff and people applying for a residence permit for

a short stay are not required to produce this certificate 408.

321. Foreigners constituting a threat to the peace and order of the country may

be expelled 409.

C. Miscellaneous

322. Repayment of costs advanced by the state for undesirable foreigners, especially as

concerns medical treatment, may be ordered by a decision of justice (Decree on

Immigration, subsidiary legislation, section 6).

23. SwazilandA. Entry

323. The general legislation concerning immigration contains restrictions with regard to

public health. The law states that foreigners may be obliged to undergo a medical control.

They are considered to be undesirable if they are suffering from an illness which can

justify prohibition to be within the territory, except for express authorization, or if they

become a public charge because of the illness from which they are suffering. Undesirable

foreigners may neither enter the territory nor reside there 410.

However, there is no restriction to entry specifically provided for with regard to

persons living with HIV/AIDS 411.


324. Undesirable foreigners may not reside within the territory: refer to the provisions

mentioned above in § 323 concerning entry. The Minister may sign an expulsion order if

he considers this to be necessary for the public good 412.

408 This information is drawn from the list established by The Laboratory Center for Disease Control in June 1997.409 Article 23 of the Decree of 1981 cited above.410 Immigration Act of 1965, articles 5, 9 and 11.411 This information is drawn from the list established by The Laboratory Center for Disease Control in June 1997.412 Article 25 of the Law of 1965 cited above.


24. TanzaniaA. Entry

325. The law states that foreigners are undesirable particularly if they refuse to undergo a

medical examination or if they are declared to be suffering from a contagious illness

which would render their presence in Tanzania dangerous for the public 413.

Nevertheless, there is no specific legislation relative to the entry or the residence of

persons living with HIV/AIDS 414. According to the Minister of Justice and

Constitutional Affairs, the free movement of persons living with HIV/AIDS is not

limited, whether they be nationals or foreigners 415.


326. Foreigners who are undesirable for reasons of health may be refused the right to

residence in the country 416.

C. Miscellaneous

327. The Resolutions of the National Workshop on Ethics, Law, Human Rights and the HIV

Virus or AIDS in Tanzania 417 contain a series of recommendations addressed to the

government. They affirm the principle of free consent to any procedure and process to

which persons living with HIV/AIDS might be submitted, and this could imply the

refusal of obligatory testing for foreigners.

25. TunisiaA. Entry

328. Tunisian legislation on health contains no restrictive measures concerning the free

movement of travellers, even if they are carriers of the AIDS virus 418.


329. The law states that residents’ cards may be withdrawn for reasons of public policy.

Public health is not expressly mentioned as grounds for withdrawal 419.

413 Article 6 of the Immigration Act of 1972.414 Information communicated by the Embassy of Tanzania in Brussels on 27 March 1997.415 Information communicated by the Minister of Justice and Constitutional Affairs on 25 July 1997.416 Article 6 of the Immigration Act of 1972.417 13-15 January 1997, Bulletin du réseau africain sur l’éthique, le droit et le VIH, June 1997, no. 3, p. 7.418 Information communicated by the Embassy of Tunisia in Brussels on 26 August 1997.419 Law no. 66-7 of 8 March 1968 concerning the situation of foreigners in Tunisia.


330. Expulsion may occur for reasons of public policy. Public health is not specifically

mentioned by the law as grounds for expulsion 420.

26. ZambiaA. Entry

331. The Immigration Act contains a series of provisions concerning public health. The

law states that authorization for entry can be delivered only if the foreigner is not

undesirable 421. The notion of an undesirable foreigner is defined by the law 422. It covers

particularly persons ‘who are carriers of prescribed diseases and who may contaminate

other persons’ 423 It is not specified whether persons living with HIV/AIDS are included

in this definition. There is no express restriction with regard to persons living with

HIV/AIDS 424.

The law permits delivery of a temporary permit to undesirable foreigners 425.

Foreigners may be obliged to undergo an examination if the immigration officer suspects

them of being undesirable foreigners on account of their physical state 426.


332. The legislative provisions with regard to undesirable foreigners concern both their

entry and their residence in the country.

333. Expulsion is provided for if foreigners constitute a danger for public policy 427.

27. ZimbabweA. Entry

334. The law states that foreigners may be obliged to undergo a medical control if the

authorities suspect them of suffering from an illness that could render them undesirable 428.

420 Law of 8 March 1968 cited above, article 18.421 Article 14 of the Immigration and Deportation Act of 1967.422 Article 22 of the Law of 1967 cited above.423 Annexe 2 of the Law of 1967 cited above.424 This information is drawn from the list established by The Laboratory for Disease Control in June 1997.425 Article 17 of the Law of 1967 cited above.426 Article 25 of the Law of 1967 cited above.427 Article 26 of the Law of 1967 cited above.428 Article 12 (3) of the 1979 Immigration Act.


The law mentions in the category of undesirable foreigners persons suffering from

illnesses that may justify their prohibition from the territory, unless they possess an

authorization and respect its conditions 429. The law also declares foreigners to be

undesirable if the may become a public charge because of the illness from which they are

suffering 430. The illnesses concerned are cited by the law, which mentions particularly

tuberculosis and syphilis 431. The HIV virus and AIDS are not mentioned, but the

Department of Immigration does not exclude it from the field of application of this

provision 432. Nevertheless, restrictions of entry have not been expressly stipulated with

regard to persons who are HIV positive or those suffering from AIDS 433.

The law specifies that refugees cannot be considered as undesirable foreigners 434.


335. Undesirable foreigners may not reside in the country and may be expelled 435.

336. Expulsion of refugees is provided for in express terms in case of threat for national

security or public policy, but not for public health 436.

B. Asia28. CambodiaA. Entry

337. The law on immigration contains no public health provision covering access to the

territory. It allows for a ban on entry to be ordered on grounds of national security, though

not on public health grounds 437.

429 Article 14 of the 1979 Immigration Act.430 Idem.431 Article 43 of the 1979 Immigration Act.432 Information contained in the study restrictions of entry and residence for people with HIV/AIDS, a global survey,

o.c., p. 69.433 This information is drawn from the list established by The Laboratory for Disease Control in June 1997.434 Article 15 of the Immigration Act.435 Article 17 of the Immigration Act.436 Article 15 of the Law of 1983 on Refugees.437 Article 9 of the Immigration law of 1994.



338. In order to stay in the country, foreigners who come under the ‘immigrants’ category 438

must be physically able to exercise their profession and prove this by means of a medical

certificate issued by a doctor from the country of origin 439.

339. A foreigner can be expelled if he poses a threat to national security; public policy

and health are not mentioned as grounds for expulsion 440.

29. ChinaA. Entry

340. The health inspection services are required to control people entering the country in

order to detect infectious diseases and take any measure required to prevent or control

such diseases. The health inspection services are authorised to demand health

declarations or a medical certificate from people entering the country 441. Any person

arriving in China must accurately complete a health declaration and submit it for

verification to the border health control and quarantine service. Persons living with

AIDS and those infected by the virus are not authorised to enter the country. If a

foreigner is already on Chinese territory, he must leave the country as soon as possible or

be escorted back to the border. Before leaving the country, the foreigner is subject to

isolation measures 442.

341. The health and quarantine organisation must prohibit any foreigner living with

AIDS from entering the country. The health and quarantine organisation monitors

transmissible diseases among all persons entering or leaving the country, and staying in

hotels or establishments hosting foreigners in a border port, and must adopt all the

necessary prevention and control measures. The doctor in charge of quarantine measures

can issue any person coming from an area infected with a quarantinable or transmissible

438 These are foreigners who wish to set up a business or to carry out activities related to industry, services, trade oragriculture, and foreigners who are not covered by article 7 of the Immigration law defining non-immigrants.

439 Article 11c of the Immigration law of 1994.440 Article 36 of the Immigration law of 1994.441 Presidential decree no. 46 of 2 December 1986 promulgating the law of the People’s Republic of China relating to

border health controls and quarantine, articles 15 and 16, IDHL, 1987, 38(4), p. 816.442 Regulation of 26 December 1987 on surveillance and control measures applicable to AIDS, articles 4 and 6,

IDHL, 1989, 39 (3), p. 623.


disease with a card bearing the wording ‘for your health’. When the holder of such a card

goes to a health organisation he must be dealt with urgently. If he turns out to be

suffering, or presumed to be suffering from a disease, the necessary health measures must

be adopted immediately and the service which issued the card must be notified 443.

Some foreigners have attempted to rebel against the screening test by claiming that

health rules in Chinese hospitals were not very reassuring and that they could contract

hepatitis or other diseases from unsterilised syringes 444.

342. Chinese citizens who have stayed abroad for more than one year must undergo an

AIDS screening test when they return 445.


343. Any foreigner arriving in China with a view to residing there permanently or staying

their for over one year (or studying for a period exceeding one year) must, when making a

request for an entry visa, present a certificate issued by a hospital or organisation in his

own country testifying that he has undergone a serological AIDS detection test. This

certificate must have been approved by a diplomatic mission or a Chinese consulate and

is valid for six months from its date of issue. Foreigners who have not undergone a

serological AIDS detection test in their own country must go to a specialised health

organisation within twenty days in order to be tested 446.

344. Foreigners resident in China who prove to be living with AIDS or to be carrying the

virus may be ordered to leave the country immediately 447. Between 1985 and 1991, 92

non-Chinese seropositives were asked to return to their country of origin. Most of these

were African students; the other cases concerned Asians, Americans and Europeans, in

descending order of importance 448.

443 Special rules on the application of the law of the People’s Republic of China relating to border health controls andquarantine, articles 99 and 100.

444 J.S. ROTH, All about AIDS, London, Harwood Academic Publishers, 1989, p. 115.445 DC. JAYASURIYA, o.c., p. 31.446 Article 5 of the aforesaid Regulation of 26 December 1987.447 Article 7 of the aforesaid Regulation of 26 December 1987.448 J.P. CABESTAN, ‘Sida et droit en Chine populaire’, Droit et sida, comparaison internationale, Paris, CNRS,

1994, p. 108.


In 1987, a seropositive Irish national was isolated before being expelled. The Irish

Government reproached China for having taken this measure 449.

30. IndiaA. Entry

345. Authorisation to enter the country is refused if the authorities are convinced that

a foreigner is suffering from a contagious disease which, according to the medical

inspector in the port or border-crossing point, could make the foreigner’s entry a threat

to public health 450.


346. By virtue of central government directives, foreigners wishing to reside in the

country for more than one year, adult members of their family and students are required

to undergo an AIDS test. An exception is made for foreign members of a foreign

diplomatic representation office or consulate or from the United Nations, whether or not

they have diplomatic status; for foreign journalists accredited by the government press

and information office; for clergymen; for foreigners under the age of 18; and for holders

of a seronegative certificate dating back at least one month. The test is carried out by a

monitoring centre within a period of one month following arrival 451. Foreigners who test

seropositive and those refusing to undergo the test are expelled 452.

C. Miscellaneous

347. With respect to the movement of persons living with HIV/AIDS, the regulations

stipulate that the railway authority should not carry people suffering from any of

the infectious or contagious diseases mentioned in the current regulations which

includes AIDS 453.

449 PANOS INSTITUTE, The Third Epidemic – Repercussions of the Fear of AIDS, London, 1990, p. 128.450 The Foreigners Order 1948, article 2.2.C.451 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.452 Idem.453 The carriage of passengers suffering from infectious or contagious diseases, 1990, IDHL, 1993, 44 (1), p. 28.


348. As regards foreigners, Doctor Paintal from the Indian Council for Medical Research

tabled a bill in June 1988 according to which sexual relations between Indians and

foreigners would be prohibited in order to prevent the spread of AIDS, on pain of

sanctions. The media criticised this idea whilst the bill was being considered by

Parliament. The Minister of Justice rejected the proposal, which would have contravened

the Indian Constitution 454.

31. IndonesiaA. Entry

349. On 3 January 1991, a circular was issued by a Ministry of Health department

affirming that HIV/AIDS should not interfere with tourism and international travel 455.

350. By virtue of the decree of 1994 concerning the national strategy for controlling AIDS in

Indonesia 456, any HIV/AIDS diagnostic test must be subject to the enlightened consent of

the person concerned, which should exclude the systematic screening of foreigners.


351. According to a study dating from June 1997, there is no screening policy but if a

foreigner is found to be seropositive, he would not be granted an extension to his

residence permit 457.

352. Section 51 of law no. 9 of 1953 on the control of foreigners (Emergency Act) appears

to have been used to expel persons with HIV/AIDS. According to this provision,

foreigners considered to jeopardise the peace, public decency or public welfare may be

expelled from Indonesia 458.

Indonesia is rather an unusual case in that the country implements both anti-

discriminatory measures – by excluding systematic screening – and discriminatory

measures – leading to the expulsion of persons living with HIV/AIDS.

454 PANOS INSTITUTE, o.c., p. 29.455 DC. JAYASURIYA, HIV Law and Law Reform in Asia and the Pacific, New Delhi, UNDP regional project on

HIV and development, 1995, p. 224.456 IDHL, 1995, 46 (1), p. 25.457 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.458 Restrictions of entry and residence for people with HIV/AIDS, o.c., p. 37.


32. MalaysiaA. Entry

353. The law allows for the minister to pass a regulation relating to the entry of people

into Malaysia, their movements within the country and their departure from the

territory 459. By virtue of general legislation on immigration, the entry of foreigners

suffering form serious contagious diseases may be prohibited 460.

The law holds that foreigners suffering from a contagious or infectious disease which

makes their presence in Malaysia a danger to the community, are undesirable 461.

According to a declaration of 22 May 1985, AIDS is an infectious disease as defined in

the law on immigration 462. Moreover, the law lists the infectious diseases and mentions

HIV/AIDS 463. It is clear that, even in the absence of specific legislation relating to AIDS,

general legislation permits restrictions on the access of persons living with HIV/AIDS to

the territory.

Article 39 of the law on immigration stipulates that anyone wishing to enter

Malaysia or to obtain a permit can be made to undergo a medical examination. Any

foreigner refusing to undergo the medical examination may be declared undesirable by

virtue of article 8.


354. Foreigners requesting a work permit to work in the construction sector, plantations

or as domestic staff must undergo an AIDS test 464.

355. The immigration department may order a foreigner living with HIV/AIDS to leave

the country on the grounds that he might contaminate other people 465.

459 Law no. 342 of 13 August 1988 modifying and updating legislation relating to measures for the prevention and controlof infectious diseases and for related purposes, article 31.2.

460 Information provided by the Malaysian Embassy in Brussels on 17 March 1997.461 Article 8 of the Immigration Act of 1959.462 Directory of legal instruments dealing with HIV infection and AIDS, Geneva, WHO, 1997, p. 121.463 Annexe 1 to the aforesaid law of 13 August 1988.464 This information comes from the list established by the US government in January 1996.465 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.


C. Miscellaneous

356. Where a person is unable to provide for his needs as a result of the disease from

which he is suffering, he may ask to be repatriated at the government’s expense 466.

33. NepalA. Entry

357. Foreigners may be obliged to undergo a medical inspection 467. No specific provision

has been made for entry restrictions against foreigners with HIV/AIDS 468.


358. A visa issued to a foreigner may be cancelled under various circumstances, in

particular where a foreigner fails to produce an international health certificate when this

is requested, or where a foreigner is suffering from a serious illness or contagious disease 469.

34. PakistanA. Entry

359. Legislation allows for a foreigner to be made to undergo a medical examination 470.

Any foreigner suffering from an infectious disease who, in the view of the medical

inspector of the port or border-crossing point, is liable to jeopardise public health may be

refused entry 471. However, there is no specific law applying to the movement of persons

living with HIV/AIDS and neither is any such law in the planning stage 472.


360. Foreigners who wish to stay in the country for more than one year may be required

by the embassy issuing the visa to produce a certificate relating to various diseases. It has

not been possible to obtain any information on the consequences of a seropositivity 473.

466 Article 46 of the aforesaid Immigration Act.467 Article 3(2)(c) of the law of 1958 on foreigners.468 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.469 Article 28 of the 1994 Immigration Rules.470 Article 3(2)(e) of the law of 1946 on foreigners.471 Order of 1951 on foreigners.472 Information provided by the IOM head office in Pakistan on 13 March 1997 and by the Pakistani Embassy in

Brussels on 23 May 1997.473 Information provided by the IOM head office in Pakistan on 13 March 1997.


This medical requirement applies primarily to foreigners requesting a long-term residence

permit who come from countries where AIDS is widespread 474.

361. Persons living with HIV/AIDS can be expelled: one author cites the case of a

foreigner who was expelled whilst he was suffering from the disease and who died during

his return journey 475.

35. PhilippinesA. Entry

362. The law allows for the medical authorities to give an opinion to immigration officers

about the foreigner’s right to enter and to stay in the country 476. A medical examination

is carried out by government medical inspectors appointed on the order of the president

especially for carrying out such examinations and determining whether the foreigner is

suffering from any mental or physical illness. If no medical inspector is available, a private

doctor may carry out the examination 477. The categories of people who are not allowed to

enter the country include foreigners suffering from dangerous or contagious illnesses, such

as epilepsy 478.

363. The law also authorises the president to suspend the right of foreigners from

countries where cholera or another infectious or contagious disease is widespread, to

enter the country 479.


364. The following people are subject to a screening test:

■ foreigners requesting a permanent visa

■ foreigners who are not legally resident

■ foreigners exchanging their temporary visa for a permanent visa

■ foreigners assigned to refugee centres 480.

474 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.475 DC. JAYASURIYA, HIV Law and Law Reform in Asia and the Pacific, o.c., p. 255.476 Section 6 of the Immigration Act of 1940.477 Section 28 of the aforesaid Act of 1940. 478 Section 29 of the aforesaid Act of 1940.479 Section 47 of the aforesaid Act of 1940.480 Immigration Regulation instructions no. 14 of 17 February 1988 and Immigration Regulation instructions no.

21 of 13 April 1988 (both issued by the Commission on Immigration and Deportation, Department of Justice)Directory of legal instruments dealing with HIV infection and AIDS, o.c., p. 143.


36. Sri LankaA. Entry

365. The law stipulates that no entry visa may be issued to a foreigner who is declared

undesirable for medical reasons in the opinion of the medical inspector, except where this

concerns foreigners exempted by law 481. Entry may be refused to foreigners living with

HIV/AIDS on this basis 482. Sri Lanka stated that restrictions could be established based

on the principle of reciprocity 483.

The medical examination of foreigners provided for by law takes place upon arrival

or as early as possible after arrival 484.


366. A foreigner who is declared undesirable for reasons of health may be order to leave

the territory 485. The provision does not apply to foreigners benefiting from an exemption

by virtue of the law 486.

C. Miscellaneous

367. Hospitals do not admit foreigners who are seropositive or living with AIDS 487.

37. SyriaA. Entry

368. Screening is compulsory upon entry for foreign students and upon return for Syrian

grant-holders who have studied abroad 488.


369. Screening is compulsory for the following categories 489:

481 Article 11 of the Immigrants and Emigrants Act of 1949.482 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997. 483 DC. JAYASURIYA, AIDS, Health, Policy and Legal Aspects, o.c., p. 29.484 Article 18 of the aforesaid Act of 1949.485 Article 31 of the aforesaid Act of 1949.486 Article 30 of the aforesaid Act of 1949.487 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.488 Regulatory decree no. 36/T of 26 October 1987 of the Ministry of Health, IDHL, 1988, 39 (2), p. 369.489 Idem.


■ foreign nationals domiciled in the Syrian Arab Republic for professional purposes,

when they make their first request for a work permit (people domiciled in the Syrian

Arab Republic and not claiming any specific citizenship are exempted)

■ foreign students who come to follow a training course in a university or college, upon

their arrival and when they enrol in such training institutions

■ grant-holders studying abroad, when they return to the Syrian Arab Republic and

prior to their re-entry into the institution which awarded them the study grant.

Generally speaking it is permitted to carry out screening on foreigners residing in the

country for professional, study or other purposes. The said persons receive a residence

permit only when they prove that they are seronegative.

370. A foreigner wishing to marry a Syrian national must undergo the test 490.

371. The competent authorities and embassies concerned make provisions for repatriating


38. ThailandA. Entry

372. There is no law prohibiting the entry of foreigners living with HIV/AIDS into the

country 492. This is the situation in 1997. Formerly entry restrictions were applied before.

The general law on immigration allows for foreigners suffering from any of the

diseases listed in the ministerial regulation to be refused entry 493. The law makes the

medical inspector responsible for diagnosing the said diseases. The previous regulation

cited AIDS among the diseases for which entry could be prohibited 494. This regulation

reflected the belief that AIDS is an imported disease. It was criticised both nationally and

internationally since it aggravated discriminatory tendencies and violated the general

principle of the right to free movement 495. It seems that proof of seronegativity was not

490 Decree no. 17/T of 30 March 1991.491 Idem.492 Information provided by the Thai Embassy in Brussels on 18 March 1997.493 Immigration Act of 1979, section 12.494 Ministerial Regulation no. 11 (1986) issued under the Immigration Act, 1979 (dated 26 August 1986) IDHL,

1987, 38 (2), p. 252.495 V. MUNTARBHORN, ‘Le sida et la loi: le dilemme thaïlandais’, Droit et sida, comparaison internationale, o.c.,

p. 421.


required with the result that in spite all this, seropositive people were able to enter the

country, whereas people who were carrying drugs for treating their disease could be

refused entry 496. The new regulation no longer includes AIDS among the diseases which

may lead to a refusal to grant right of entry 497.


373. At present there is no law prohibiting the residence of foreigners living with

HIV/AIDS 498. In the previous regulation, AIDS was cited among the diseases which

could lead to a ban on settling in Thailand. The new regulation abolishes this restriction

since AIDS no longer figures on the list of diseases entailing such a ban.

374. There is no law specifying that persons living with HIV/AIDS can be expelled 499.

However, the law provides in general that expulsion may be ordered in cases where the

measure is required in the interests of peace, public policy and public decency 500.

39. TurkeyA. Entry

375. By virtue of the law, persons afflicted with contagious diseases may be refused entry 501.

However, persons whose condition does not pose a threat to public health and safety, who

arrive by their own means or with the pecuniary assistance of their guardian or curator, in

order to undergo medical or other treatment, may be exempted from this provision. There

is no restriction on the entry of foreigners living with HIV/AIDS. There is no law

prohibiting the entry of foreigners who are seropositive or living with AIDS 502. According

to the information received, there is no restriction on the entry of foreigners living with

HIV/AIDS which would allow the general law to be used for this purpose 503.

496 PANOS INSTITUTE, o.c., p. 128.497 Regulation no. 14 of 20 February 1992 of the Ministry of the Interior made for the implementation of the law of

1970 on immigration.498 Information provided by the Thai Embassy in Brussels on 18 March 1997.499 Idem.500 Section 5 of the law of 7 July 1964 on deportation.501 Article 8 of the Passport Act of 1950.502 Information provided by the Turkish Embassy in Brussels on 28 August 1997.503 Idem.



376. The law stipulates in general that no residence permit shall be issued to foreigners

who disturb public policy 504. There is no law prohibiting foreigners living with

HIV/AIDS from staying in the country 505. There is no restriction applying to the right of

such people to stay in Turkey 506.

377. The law specifies that any foreigner who is a threat to public safety may be expelled.

Public health is not mentioned as a ground for expulsion 507. No law provides for the

expulsion of foreigners living with HIV/AIDS 508.

378. A medical inspection is stipulated for refugees 509. In the case of a contagious disease,

all the necessary measures are taken and the authorities informed. Foreigners suffering

from serious diseases are treated in state hospitals. The costs are covered, with certain

exceptions. A refugee may only be expelled in compliance with the Geneva Convention

and if the person concerned is a threat to national security or public policy 510.

40. VietnamA. Entry

379. The law provides for a request for an entry or exit visa to be refused with a view to

preventing and controlling an epidemic 511. Foreigners with HIV/AIDS must make a

declaration upon their arrival, with the procedure relating to this declaration being

determined by the government 512.

380. Vietnamese nationals returning to their home country have been subjected to a test 513.

504 Article 7 of the law of 1950 concerning the stay and travelling of foreigners in Turkey.505 Information provided by the Turkish Embassy in Brussels on 28 August 1997.506 Idem.507 Law of 1950, article 19.508 Information provided by the Turkish Embassy in Brussels on 28 August 1997.509 Decision no. 94/6169 of 30 November 1994, applying to refugees.510 Idem.511 Ordinance of 1992 on the exit, entry, residence and travel of foreigners in Vietnam, article 6.512 Ordinance of 31 May 1995 on the prevention and control of HIV/AIDS, article 19 and decree no. 34/CP of

1 June 1996. Also see the list established by the Federal Department of Foreign Affairs in Switzerland inFebruary 1997.

513 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.



381. Foreigners registered as residents in Vietnam for a period exceeding three months

must undergo a screening test 514.

382. A foreigner may be subject to an expulsion order if he poses a threat to the health of

other people living in Vietnam 515.

C. Miscellaneous

383. No foreigner infected by the HIV virus or living with AIDS is authorised to marry a

Vietnamese citizen 516.

C. Central and South America41. ArgentinaA. Entry

384. By virtue of the law, on no account may foreigners suffering from transmissible

diseases which present a risk to the community enter or stay in the country 517. The

national health authorities and authorities delegated by them are responsible for

determining the risk.

HIV screening is included in the health control of immigrants. The constitutional

validity of this provision is debatable. Indeed, article 14 of the Constitution recognises

that the rights of the nation’s inhabitants include the right to enter, stay, pass through and

leave Argentine territory. Furthermore, the preamble to the Constitution states that the

Grand Charter is aimed at ‘anyone in the world who wishes to live on Argentine soil’ 518.


385. Foreigners suffering from diseases that reduce their ability to work are deemed

unsuitable for admittance as permanent or temporary residents 519. In order to obtain a

514 Governmental decree no. 16/CP of 18 December 1992 regulating certain aspects of the measures of prevention andof the campaign against the infection by HIV and against AIDS, IDHL, 1993, 44 (2), p. 230.

515 Article 14 of the aforesaid law of 1992.516 Article 15 of aforesaid decree no. 16/CP.517 Article 21(a) of decree 1023/94 of 29 June 1994 approving the immigration regulation.518 N. MINYERSKY, J. MONTI, M.E. VASQUEZ ACUNA, ‘La problématique du sida en Argentine’, Droit et

sida, comparaison internationale, o.c., p. 47.519 Article 22(a) of aforesaid decree 1023/94.


temporary or permanent residence permit, a foreigner must provide a medical certificate

established by a doctor or a health authority recognised for the purpose, describing his

physical state of health 520.

386. In certain cases of expulsion, health care may be provided as far as the place of

destination. Moreover, the national immigration department may request the

collaboration of the health authorities to ensure that foreigners who are subject to an

expulsion order and who are in need of medical care are detained in suitable official

health institutions where they are provided with medical care 521.

387. Asylum-seekers and refugees must respect public policy, the peace and public safety.

Refugees may be given temporary or permanent resident status. Their right of residence

may be terminated in compliance with the general rules mentioned above 522.

42. BahamasA. Entry

388. The law stipulates that a foreigner may only be allowed to enter and stay in the

country if he is not suffering from a contagious or infectious disease which, in the opinion

of the medical inspector, makes his presence a danger to the community 523. There is no

official legislation banning foreigners living with HIV/AIDS from entering the country.

However, by extending the application of general legislation to AIDS, the Ministry of

Health recommended that persons living with HIV/AIDS should not be authorised to

enter the country 524.


389. Foreigners other than those benefiting from a permanent right of residence may be

ordered to leave the territory if this is in the public interest 525.

520 Articles 39 and 44 of aforesaid decree 1023/94.521 Articles 85 and 87 of aforesaid decree 1023/94.522 Reference should be made on this matter to articles 21 and 22 of aforesaid decree 1023/94. Nevertheless it

should be noted that by virtue of article 173, the provisions of article 22 do no apply to refugees. 523 Immigration Act of 1967, article 19.524 Restrictions of entry and residence for people with HIV/AIDS, o.c., p. 16.525 Article 36 of the Act of 1967 on immigration.


43. BarbadosA. Entry

390. Foreigners arriving on the territory are subjected to a medical examination 526.


391. The law lists the categories of foreigner considered to be undesirable 527. These

include foreigners suffering from contagious diseases as defined in the legislation on

health services, as well as foreigners who, due to a physical disability, are unable to

provide for their own needs or who become a public charge. AIDS is neither expressly

included nor excluded from these provisions. Foreigners entering the country for medical

treatment may, however, receive dispensation from these rules subject to authorisation

from the minister 528.

44. BelizeA. Entry

392. A medical examination for foreigners is provided for by law 529. Any foreigner

refusing to undergo a medical inspection may be refused entry.

Mentioned in the law as undesirable foreigners are foreigners suffering from

contagious diseases, making their entry a danger to the community, as well as foreigners

who are liable to become a public charge because of the disease from which they are

suffering 530. As a result of a government declaration relating to residence, the restrictive

measures of this general legislation were extended to AIDS. However the law does

authorise the Minister to exempt certain foreigners from the above-mentioned rules.

Furthermore, the law, without prejudice to the issue of whether or not a foreigner is

undesirable, allows any person to be granted a special permit authorising him to remain

temporarily in the country for medical treatment against any contagious disease. The

person concerned must nevertheless respect the conditions laid down by the government

medical inspector 531.

526 Article 12 of the Act of 1976 on immigration.527 Annexe 1 to the aforesaid Act of 1976.528 Article 8(2)(a) of the aforesaid Act of 1976.529 Article 22 of the Immigration Ordinance of 1958.530 Article 4 of the Immigration Ordinance of 1958.531 Article 16 of the Immigration Ordinance of 1958.



393. According to a government declaration, foreigners wishing to settle, work or apply

for naturalisation must show proof of a negative test dating back a maximum of two

months. A dispensation is allowed for diplomatic staff 532.

45. BoliviaA. Entry

394. Generally speaking a person’s consent is required before carrying out AIDS screening.

The law expressly prohibits AIDS screening for foreigners and nationals entering Bolivia.

There are sanctions for failing to comply with the aforesaid provisions 533. Formerly there

were entry restrictions 534.


395. People requesting temporary or permanent right of residence must undergo an AIDS

test within 48 hours of entering the country 535. An exception is made for diplomatic staff 536.

The obligation to undergo a screening test in order to obtain a residence or work permit

appears to be contrary to the texts adopted as part of the fight against AIDS which require

the individual’s consent before carrying out a screening test 537.

46. BrazilA. Entry

396. By decision of the National Commission for the Control and Prevention of AIDS, the

legislation in force in Brazil does not stipulate screening for foreigners travelling to Brazil 538.

532 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerlandin February 1997.

533 Resolution no. 0660 of December 1996 on the prevention and surveillance of HIV/AIDS in Bolivia, articles 8, 45and 65.

534 Restrictions of entry and residence for people with HIV/AIDS, o.c., p. 18.535 Inter-ministerial resolution no. 0415/89, article 48 in H. FUENZALIDA PUELMA, A. LINARES PARADA

and D. SERRANO LA VERTU, Aportes de la ética y el derecho al estudio del sida, Pan-American HealthOrganization, 1991, p. 56.

536 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerlandin February 1997.

537 Aforesaid resolution no. 0660.538 Information provided by the Brazilian Embassy in Brussels on 20 June 1997.



397. Brazilian immigration legislation does not require any type of certificate and requires

no medical examination in order to obtain a visa 539.

47. ChileA. Entry

398. Entry is refused to any foreigner suffering from a disease which, according to the

Chilean authorities, may constitute grounds for refusing the right to enter the country 540.


399. Visitors other than tourists are required to present a medical certificate attesting that

they are in good health and are not suffering from any contagious disease. A foreigner

must also provide a certificate proving that he has undergone an AIDS screening test,

issued by the laboratory division of the Ministry of Health 541.

48. ColombiaA. Entry

400. The law states that immigration is governed by social, demographic, economic,

scientific, cultural, public policy and health requirements. No foreigner suffering from an

infectious/contagious disease may enter the country 542. There is no specific legislation

relating to the entry of foreigners suffering from HIV/AIDS 543. The information relating

to foreigners staying in the country tends to consider that the scope of general legislation

is sufficient to allow for restrictions on access to the territory on the grounds of AIDS.

However this interpretation is not hardly compatible with the decree on the prevention

of transmissible diseases which prohibits systematic screening (infra § 402).

539 Idem.540 Article 15 of statutory order no. 1094 of 1975 establishing the laws concerning foreigners in Chile.541 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.542 Articles 5 and 166 of decree no. 2731 of 27 December 1996.543 Information provided by the Colombian Embassy in Brussels on 1 September 1997.



401. Before a visa can be granted the law requires foreigners to provide a medical

certificate in cases where this is stipulated by the ministry of foreign affairs for

health reasons 544.

Foreigners wishing to reside permanently must present a certificate proving the

absence of HIV infection 545. Certificates issued abroad are accepted 546.

The law allows a foreigner to obtain a one-year residence permit in order to receive

medical treatment. For this purpose the foreigner must present proof of the necessity

and duration of such treatment, as well as proof of adequate financial resources 547.

Failure to respect the provisions of the decree on immigration may result

in expulsion 548.

C. Miscellaneous

402. It is prohibited to demand certificates relating to sexually-transmitted diseases,

including HIV infection, which should exclude the systematic screening of foreigners.

Since this prohibition applies ‘without prejudice to any health measures of an individual

nature’, there is reason to question the interpretation of this phrasing and whether it

could include the possibility of carrying out systematic screening on foreigners 549.

49. Costa RicaA. Entry

403. Restrictions were applied in the past 550. The law provided that foreigners requesting

a permanent or temporary residence permit had to undergo an AIDS test, the test being

544 Article 19 paragraph 4 of aforesaid decree no. 2731.545 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.546 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.547 Articles 101 et seq. of aforesaid decree no. 2731.548 Article 195 of aforesaid decree no. 2731.549 Decree no. 0559 of 22 February 1991 issuing regulation for the partial implementation of laws no. 09 of 1979 and

no. 19 of 1990, on the prevention, control and surveillance of communicable diseases, with particular reference toinfection by the human immunodeficiency virus (HIV) and the acquired immune deficiency syndrome (AIDS) andpromulgating other provisions on this subject, IDHL, 1992, 43(3), p. 508.

550 Decree no. 18781-S-G of 19 January 1989 containing provisions concerning the screening which certains categories offoreign nationals resident in Costa Rica must undergo, replacing the provisions of decree no. 18536-S-G of 6 October 1988 containing detailed provisions relating to treatment administered to persons living with AIDS.


carried out at the ministry of health, and that a seropositive foreigner could be refused

entry 551. This legislation was repealed 552.


404. Former legislation authorised the expulsion of any foreigner who was seropositive 553.

This legislation was repealed but the legislation on immigration allows for a foreigner to

be expelled if he threatens national security, the peace or public policy, or where special

circumstances so require 554.

50. CubaA. Entry

405. All foreign grant-holders or non-Cuban nationals who come to reside in Cuba for

periods exceeding three months must undergo an AIDS screening test upon arrival or on

the order of the health authorities 555. The test is carried out upon arrival or when the

health authorities deem it necessary. Diplomatic staff are exempted from application of

the law 556. Cuban authors have justified the measure by saying: ‘This health and

epidemiological control is all the more necessary since we are certain (with the support of

clinical statistics) that sexual relations are at the origin of the transmission of AIDS into

our country and, inevitably, sexual relations with foreigners constitute one of the

principal sources of contamination’ 557. If such is the justification for compulsory

screening, one might wonder why the measure is aimed only at foreigners requesting long-

term residence and not those requesting short stays, notably tourists, in particular when

one considers the existence of sex tourism in the Caribbean.

551 Aforesaid decree of 19 January 1989.552 Decree no. 20202-S-G of 17 January 1991, IDHL, 1991, 42(2), p. 242.553 Decree no. 18536-S-G of 6 October 1988 repealed by the decree of 19 January 1989, itself replaced by the

decree of 17 January 1991.554 Article 121 of the law of 1986 on immigration.555 Ministerial resolution no. 144 of 11 June 1987.556 O. MESA CASTILLO, R. FRANCO RIVERO, A. VASQUEZ SANCHEZ and A. MARTINEZ MARTIN,

‘La législation cubaine face au sida’, in Droit et sida, comparaison internationale, o.c., p. 144-145.557 Idem, p. 145.


406. A sero-epidemiological examination is required for Cuban nationals who have been

living permanently in Africa and who entered Cuba after 1975, as well as for Cubans

having lived on a permanent basis in Nicaragua 558.


407. Any foreign national who tests seropositive must be sent back to his own country 559.

51. Dominican RepublicA. Entry

408. The only regulation relating to the health inspection of foreigners is contained in

the public health code 560. By virtue of this law, the secretary of state for public health

assists the executive authority on health aspects of the immigration policy and submits a

draft regulation to the President setting out the minimum health conditions required for

people wishing to enter the country. It also makes it compulsory for all foreigners to

undergo a medical examination in order to receive authorisation to enter the country.

The same legislation states that under no circumstances may people suffering from

transmissible diseases be allowed to stay in the country. There is no specific legislation on

the entry and residence of foreigners with HIV/AIDS 561.


409. Foreigners wishing to settle in the country must provide proof of a negative test

when applying for permanent residence 562.

52. EcuadorA. Entry

410. Foreigners wishing to enter Ecuador must pass an examination carried out by the

health authorities 563.

558 Ministerial resolution no. 129/86 in H. FUENZALIDA PUELMA, A. LINARES PARADA and D.SERRANO LA VERTU, o.c., p. 77.

559 Article 2 of the aforesaid resolution of 11 June 1987.560 Law no. 4471 of 3 June 1956, public health code, book II, section III, chapter III, article 108.561 Information provided by the Embassy of the Dominican Republic in Brussels on 2 August 1997.562 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.563 Article 7-II of law no. 1899 of 1972 on immigration.



411. Foreigners suffering from serious, chronic and contagious diseases, such as tuberculosis,

leprosy, trachoma and other similar diseases not subject to quarantine may not obtain a visa

to enter the country 564. Such foreigners are subject to an exclusion clause.

Furthermore, the law stipulates that where one of the above cases for exclusion

applies to a foreigner, his expulsion may be ordered 565. No express or implicit application

of these general provisions to AIDS has been reported.

53. JamaicaA. Entry

412. The law makes provision for a medical inspection upon entry to the territory. For a

foreigner to be authorised to enter the country, he must not be the subject of a certificate

sent by the medical inspector to the immigration officer stating that the foreigner is

undesirable for medical reasons 566. Jamaica has declared its support for the WHO policy

on travellers suffering from HIV/AIDS 567. From this it must be inferred that the general

provisions do not extend to AIDS.


413. Expulsion may be ordered if the minister deems this measure to be in the

public interest 568.

54. MexicoA. Entry

414. The law states that any foreigner who, according to the health authority, is not in

good physical condition may be refused entry 569. A foreigner entering the country must

present an official certificate issued by the authorities in the country of origin, proving

564 Article 9-VII of aforesaid law no. 1899.565 Article 17 of aforesaid law no. 1899.566 Articles 9(1) and 6 of the Aliens Act of 1946.567 N. GILMORE, ‘Medical and Political Aspects of Travel for HIV Positives’, Travel Medicine 2, Proceedings of

the Second Conference on International Travel Medicine, Atlanta, Georgia, USA, May 9-12 1991, p. 208;Restrictions of Entry and Residence for People with HIV/AIDS, o.c., p. 40.

568 Article 15(6) of the Aliens Act of 1946.569 Article 37 of the general population Act of 1992.


that he is in good physical health, in the cases stipulated by the secretary of state. The

law also states that foreigners must pass the health authority examination 570. Any

foreigner suffering from an infectious or contagious disease constituting a risk to public

health may be refused entry to the territory 571. There is no legislation limiting the entry

of foreigners living with HIV/AIDS 572.


415. There is no law which specifically restricts the right of foreigners with HIV/AIDS to

stay in the country 573. Nevertheless, in practice, foreigners wishing to reside permanently

in Mexico must present a certificate of seronegativity 574.

55. NicaraguaA. Entry

416. Foreigners wishing to enter the country with a view to residing there on a temporary or

permanent basis, together with the members of their families, must provide a medical

certificate issued by the health authorities of the country of origin 575. Foreigners who belong

to the category of non-residents (in particular tourists) must provide the same certificate 576.


417. Foreigners suffering from contagious or infectious diseases constituting a danger to

public health are not admitted as permanent or temporary residents. An exception is

made in the case of family reunification 577. Non-resident foreigners are not admitted to

the country in cases where their entry constitutes a threat to the health of the nation 578.

Furthermore, the law allows for the residence permit to be revoked for reasons relating to

public policy 579.

570 Article 62 of the aforesaid law of 1992.571 Article 57 of the Regulation of 30 September 1992 implementing the General Population Act.572 Information provided by the Mexican Embassy in Brussels on 19 March 1997.573 Idem.574 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997,

as well as the list established by the US government in December 1996.575 Immigration Act no. 153 of 1993, articles 11, 31 and 57.576 Aforesaid Act no. 153, article 60.577 Articles 4 and 5 of law no. 154 of 1993 on foreigners.578 Article 5 of aforesaid law no. 154.579 Article 29 of aforesaid law no. 154.


56. PanamaA. Entry

418. There is no specific restriction on access to the territory for short stays.


419. Foreign nationals entering Panama with the intention of settling there permanently

or for a period exceeding one year must hold a medical certificate issued in their country

of origin testifying that they have been screened for AIDS and tested seronegative. If a

foreigner tests seropositive, he is refused entry. The certificate, certified as accurate by the

competent diplomatic mission or consulate, is valid for only two months 580.

57. PeruA. Entry

420. There is no legal provision in Peru governing the movement of foreigners living with

HIV/AIDS 581. There does not appear to be any restriction on access to the territory 582.


421. Compulsory screening was formerly imposed on people wishing to elect domicile in

Peru 583 but the legislation imposing this measure was repealed.

422. A law dating back to 1996 584 states that screening is voluntary (except for blood and

organ donors), which should now exclude any systematic screening of foreigners wishing

to stay in the country.

580 Law no. 26 of 17 December 1992 giving measures for the prophylaxis and control of the acquired immune deficiencysyndrome (AIDS) epidemic and the spread of the human immunodeficiency virus (HIV), IDHL, 1995, 46(4), p. 474.

581 Information provided by the Peruvian Embassy in Brussels on 14 October 1997.582 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.583 Law no. 25275 of 10 July 1990 declaring measures for the control of AIDS to be in the public interest and of priority

importance with regard to the national health policy, Directory of legal instruments dealing with HIV infection andAIDS, o.c., p. 142.

584 Law no. 26626 of 19 June 1996 assigning to the ministry of health the task of drawing up the national plan for thecontrol of the human immunodeficiency virus, AIDS and sexually transmitted diseases (CONTRASIDA), Directoryof legal instruments dealing with HIV infection and AIDS, o.c., p. 143.


C. Miscellaneous

423. A 1987 resolution relates the epidemiological situation in Peru. According to this

resolution, the first cases of AIDS concerned homosexuals who had travelled abroad;

next the disease was diagnosed in homosexuals who had not travelled but had engaged in

sexual relations with foreigners; finally, the disease was found in homosexuals and

heterosexuals who, despite not having travelled abroad nor having had sexual relations

with foreigners, had contracted the disease 585.

58. El SalvadorA. Entry

424. The health authorities are authorised to impose regular medical examinations on the

entire population, as well as medical examinations, either periodically or otherwise, for

certain population groups in the case of an epidemic or specific risk. Any traveller

entering Salvadorian territory must present to the appropriate health authority valid

international vaccination certificates or other certificates of serological examinations

concerning diseases specified by the ministry. In addition, travellers must undergo any

medical examination required by the competent health authority. Immigrants must undergo

a medical examination stipulated by the health authority, if it deems it necessary, in order

to confirm the medical certificates obtained in their countries of origin and duly certified

as accurate by the Salvadorian health authorities on the basis of clinical, radiological and

laboratory examinations testifying that the persons in question are neither suffering from

nor carrying transmissible diseases 586.


425. An AIDS test is required for foreigners requesting temporary or permanent residence 587.

585 Resolution no. 011-87-SA of 2 April 1987 approving the multi-sector national programme for the prevention andcontrol of AIDS.

586 The Health Code (promulgated by decree no. 955 of 11 May 1988), IDHL, 1990, 41(1), p. 9.587 H. FUENZALIDA PUELMA, A. LINARES PARADA and D. SERRANO LA VERTU, o.c., p. 37; this

information also comes from the list established by the Federal Department of Foreign Affairs in Switzerland inFebruary 1997.


59. Trinidad and TobagoA. Entry

426. The law allows for people suffering from contagious or infectious diseases to be

banned from entering the country, as defined in the public health order 588. Such people

are deemed to be undesirable. The minister may authorise such persons to enter or stay in

the country subject to certain conditions. The person concerned must not be liable to

become a public charge and must have relatives in the country. Moreover, the minister of

health must have given his agreement for treatment in a hospital or any other location in

the country 589. There is no law specifically limiting the entry and residence of foreigners

living with HIV/AIDS 590. According to information relating to residence, application of

the general law extends to AIDS.


427. When considering a foreigner’s application for residence the minister must check

that he is not an undesirable alien 591. Foreigners requesting a residence permit or wishing

to remain in the country for more than one year must undergo an AIDS test. Foreigners

living with HIV/AIDS may be refused right of residence 592.

60. VenezuelaA. Entry

428. A resolution adopted in 1994 593 limits screening to various situations that do not

include mention of screening for foreigners with HIV/AIDS. In addition, this resolution

stipulates that tests to detect the HIV antibody may not be administered without the free,

express and manifest consent of the person undergoing such an examination, and that

such an examination may not be carried out in any situation likely to limit his freedom to

exercise individual, social, economic, political and cultural rights 594. This provision

588 Article 8(1)(b) of the 1980 Immigration Act.589 Article 10(3) of the 1980 Immigration Act.590 Information provided by the Embassy of Trinidad and Tobago in Brussels on 19 April 1997.591 Article 6(2) of the 1980 Immigration Act.592 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.593 Resolution no. SG-439 of 26 August 1994, IDHL, 1994, 45(4), p. 503.594 See An advocate’s guide to the international guidelines on HIV/AIDS and human rights, prepared by ICASO,

October 1997, p. 8.


should exclude the systematic screening of foreigners. Nevertheless, it would appear

that the test has been carried out, at least in the past, on foreign sailors 595.


429. It would appear that the test may be required of foreigners requesting

a residence permit 596.

430. The expulsion of a foreigner may be ordered if he jeopardises public safety or policy 597.

D. South Sea Islands61. FijiA. Entry

431. There is no legislation aimed at restricting the free movement of persons with

HIV/AIDS 598.

B. Residence

432. No medical certificate is required in order to obtain a visa, except if a foreigner has

stayed in a country where ‘yellow fever, cholera, malaria, etc.’ are rampant 599.

62. Papua New GuineaA. Entry

433. The law states that a foreigner may be subjected to a medical examination 600. Any

foreigner suffering from a disease constituting a threat to the community or who refuses to

undergo a medical examination may be refused entry 601.

Visitors of good faith who enter the country for work or leisure reasons benefit from

laws guaranteeing the principle of non-discrimination. In exchange, the emphasis is

placed on the responsibility each visitor must assume. As a result of the efforts of the

595 Restrictions of entry and residence for people with HIV/AIDS, o.c., p. 68; see also N. GILMORE, o.c., p. 209.596 This information comes from the list established by the US government in January 1996. It has not been

possible to confirm it from other sources.597 Article 37 of the law on foreigners of 1997.598 Information provided by the Fijian Embassy in Brussels on 2 October 1997.599 Idem.600 Article 9(2) of the Migration Act of 1978.601 Article 9(1) of the aforesaid Act of 1978.


World Trade Organisation to promote the free movement of people, the government

faces the dilemma of whether fundamental freedoms should be compromised in order

to control the disease. This is why Papua New Guinea is cautious about accepting

foreign travellers 602.


434. The test is compulsory for foreigners applying to stay in the country 603. A work

permit is delivered only upon presentation of a certificate of seronegativity 604.

63. Western SamoaA. Entry

435. Visitors and tourists do not have to declare their seropositive status in order to

be allowed access to the territory. The same applies to returning Samoan nationals 605.

A contrario restrictions do apply to foreigners other than visitors and tourists.


436. The law allows the minister to order a foreigner to leave the country if he considers

that the foreigner is rebellious or likely to pose a threat to the country’s peace, order or

proper administration or if the foreigner is undesirable 606. The decision of the minister is

final and may not be appealed against in the courts. This regulation has been used to

expel foreigners living with HIV/AIDS. Indeed the case of two tourists, one of whom was

seropositive, and to whom section 13(1)(a) was applied, was mentioned in doctrine 607. In

this case, immigration and health officers had questioned the two tourists and found them

to be carrying drugs. The persons concerned had claimed that the drugs were intended to

alleviate pain. The competent authorities then required the minister to exercise the

powers provided under section 13 of the law on immigration.

602 Information provided by the Embassy of Papua New Guinea in Brussels on 29 April 1997.603 This information comes from the list established by the US government in January 1996.604 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.605 Information provided by the Samoan Embassy in Brussels on 2 April 1997.606 Section 13(1)(a) of the law of 1996 on immigration.607 DC. JAYASURIYA, HIV Law and Law Reform in Asia and the Pacific, o.c., p. 299.


437. In general, the policy applying to foreigners living with HIV/AIDS varies according

to whether this involves a short- or long-term stay. In cases where they are seropositive,

foreigners requesting a residence permit must declare this when requesting a permit 608.

C. Miscellaneous

438. The director-general for health may decide to detain a person and order him to

undergo further examination if the person concerned is suspected of suffering from an

infectious disease posing a threat to the general public. Furthermore, where a ship or air

passenger is suffering from a disease suspected of being infectious, the official in charge of

the ship or aeroplane must notify the director of the existence of such disease 609. The

order laying down these measures does not expressly include HIV/AIDS among the

infectious diseases. Nevertheless, the text does apply to this disease by virtue of a 1987

notice from the government 610.

64. TongaA. Entry

439. A foreigner may be obliged to undergo a medical examination 611.


440. Any foreigner refusing to undergo a medical examination or to assist with a test

which the medical inspector might require is undesirable according to the law. Any

foreigner suffering from a contagious disease making his presence a danger to the

community is also considered to be undesirable 612. The express or tacit application of this

provision to AIDS has not been confirmed.

608 Information provided by the Samoan Embassy in Brussels on 2 April 1997. 609 Health Ordinance 1959, articles 29 and 33.610 DC. JAYASURIYA, HIV Law and Law Reform in Asia and the Pacific, o.c., p. 298.611 Article 5(d) of the law on immigration of 1969.612 Article 8(2)(d) of the aforesaid law.


E. Central Europe65. AlbaniaA. Entry

441. The law specifies that entry may be refused on health grounds and that the list of

diseases justifying refusal of entry must be established in the implementing regulations 613.

The minister is responsible for organising and directing health and disease control

services at air, sea and land border-crossing points, depending on traffic and the

epidemiological situation, in order to prevent dangerous diseases from being imported,

in compliance with the international health regulation 614.

The reference to the international health regulation would imply that AIDS

is not included among the diseases that allow for restrictions, as defined in this

general legislation.


442. As with access to the territory, the law states that the right of residence may be

refused on health grounds 615.

443. Foreigners expelled on health grounds have the right to lodge an appeal before the

Court of Appeal 616.

C. Miscellaneous

444. Anyone has the right to leave the country. Nevertheless, this right may be restricted,

in particular on the grounds of public health 617.

66. BulgariaA. Entry

445. People who are likely to transmit a contagious disease or do not have a vaccination

certificate may be refused entry if an epidemic is raging in the country of origin of the

person concerned 618.

613 Chapter III of Immigration law no. 7939 of 25 May 1995, article 10.614 Chapter II (articles 9 to 22) of law no. 7761 of 19 October 1993 on measures for the prevention and control of

communicable diseases, IDHL, 1995, 46(3), p. 310.615 Article 10 of the Immigration law of 25 May 1995.616 Idem.617 Article 6 of the aforesaid Immigration law.618 Article 7 of the law of 1972 on residence for foreigners.



446. The law states that foreigners of Bulgarian origin, foreigners married to Bulgarian

nationals, their children and the children adopted by Bulgarian nationals may obtain a

permanent residence permit except under certain circumstances, including cases where a

foreigner is suffering from a contagious disease 619. Furthermore, legislation allows a

residence permit to be revoked on the same grounds 620.

447. The law on residence for foreigners allows foreigners working in Bulgaria the same

rights and obligations as Bulgarian citizens, particularly with regard to health care 621.

448. AIDS screening is compulsory both for Bulgarian citizens and for foreign nationals

and stateless persons living in Bulgaria 622. Foreign nationals and stateless persons who

come to stay in Bulgaria for over one month for study or professional purposes, as well as

immigrants, independently of the length of their stay, are subject to screening 623. The test

is carried out in a hospital or laboratory within 72 hours of arrival. Foreign diplomats are

not affected by the measure 624.

449. Foreigners liable to transmit serious contagious diseases may be subject to an

expulsion order 625. If a foreigner is refused by the destination country, he must be

admitted into a health care institution until the departure of this person becomes

possible. The measure has been applied to persons living with HIV/AIDS 626.

450. A medical examination is stipulated for asylum-seekers 627. Refugee status may be

refused on the basis of peace or public security, with public health not being expressly

mentioned 628. During the asylum procedure the asylum-seeker is entitled to medical care 629.

619 Article 8 of the aforesaid law of 1972.620 Article 31 of the aforesaid law of 1972.621 Article 22 of the aforesaid law of 1972.622 Article 36 of decree no. 1564 of 18 November 1988 amending the law on public health, IDHL, 1990, 41(2), p. 246.623 Order no. 4 of 2 April 1992 on the conditions and the procedure applicable to the testing of the infection by the

Acquired Immuno-Deficiency Syndrome virus, IDHL, 1994, 45(2), p. 169.624 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.625 Article 32(4) of the aforesaid law of 1972.626 Restrictions of Entry and Residence for People with HIV/AIDS, o.c., p. 20.627 Article 9 of decree no. 208 of 4 October 1994 on refugees.628 Article 3 of aforesaid decree no. 208.629 Article 21 of aforesaid decree no. 208.


67. HungaryA. Entry

451. The authorities may refuse right of entry or residence where there is a threat to

public health 630. A circular 631 stipulates various situations where screening is compulsory.

The screening of foreigners arriving in the country is not mentioned.


452. An application for a residence permit must be accompanied by a certificate testifying

that the foreigner does not suffer from a disease which endangers public health 632. The

issue or renewal of a residence permit may be refused if a foreigner fails to respect

Hungarian public health regulations 633. A medical certificate must accompany the

application for an immigration permit (granted in cases where a foreigner has remained in

Hungary without interruption for at least three years) 634.

All foreigners wishing to obtain a residence permit enabling them to settle there

permanently (more than one year) must undergo an AIDS test, except for diplomatic and

consular staff. The AIDS test certificate must be authenticated by the competent

authority on the spot 635. Student grant-holders from Sub-Saharan Africa must also

undergo the test 636.

68. PolandA. Entry

453. In general the law provides that a visa may be refused if a person is undesirable with

regard to the public interest 637. No specific legislation has been passed with a view to

limiting the movement of foreigners living with HIV/AIDS 638.

630 Article 23 of the law of 14 September 1993 on the entry, residence and immigration of aliens.631 Circular no. 53636 of 28 December 1986 of the Ministry of health on the standardized procedure for the detection

of HIV, DIHL, 1988, 39(2), p. 367.632 Article 15 of the aforesaid law of 14 September 1993.633 Article 16 of the aforesaid law of 14 September 1993.634 Article 17 of the aforesaid law of 14 September 1993.635 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.636 This information comes from the list established by The Laboratory Centre for Disease Control in June 1997.637 Article 5 of the law of 1963 on foreigners.638 Information provided by The National Office for AIDS Prevention in Poland on 13 June 1997.



454. The law on employment includes the obligation to undergo a medical examination 639.

The law on the control of contagious diseases also allows for the possibility of any person

staying in Poland to undergo a medical examination 640. This law concerns AIDS which is

considered to be a contagious disease 641.

In 1987, the Ministry of Health proposed a regulation providing for compulsory

screening for foreigners who stay in Poland for a period of over one month. This idea has

remained at the draft stage but serves as the basis for the screening carried out on foreign

students 642. The screening of foreign students is still in application 643.

455. In considering an arrest measure prior to expulsion, the person’s state of health

must be taken into account 644. A 1993 order covers the detention of foreigners with a

view to their expulsion. Medical care is guaranteed. The order states that a foreigner

must undergo a medical examination. Persons undergoing treatment in hospital may not

be detained 645.

69. RomaniaA. Entry

456. Current Romanian legislation does not contain any specific regulation relating to

the movement of persons with HIV/AIDS 646. Nevertheless, a bill concerning the regime

of foreigners in Romania was put before Parliament in October 1997. It states that ‘a

Romanian visa may be refused to foreigners suffering from diseases which endanger

public health’ 647.

The visa obligation concerns nationals from Africa, Asia and South America 648.

639 Article 13 of the law of 1 January 1995 on employment, applicable to both Polish and foreign nationals.640 Law of 13 November 1963 on controlling contagious diseases.641 Restrictions of entry and residence for people with HIV/AIDS, o.c., p. 53.642 M. BREUM and A. HENDRIKS, AIDS and Human Rights: An International Perspective, Copenhagen,

Akademisk Forlag, 1988, p. 117.643 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.644 Article 17 of the aforesaid law of 1963.645 Order from the Minister of the Interior of 9 July 1993.646 Information provided by the Romanian Embassy in Brussels on 20 October 1997.647 Idem.



457. The aforesaid bill which permits foreigners suffering from diseases which endanger

public health to be refused a visa, also concerns the residence of foreigners living with

HIV/AIDS.

70. SlovakiaA. Entry

458. The law permits entry to be refused with a view to protecting public health 649.


459. Residence may be refused in order to protect public health 650. AIDS screening is

compulsory for foreigners wishing to reside in the country 651. The law on the stay and

residence of foreigners in the Czech Republic and Slovakia applies to both countries

(infra § 463).

460. The legislation on health care contains provisions relating to the treatment

of foreigners 652.

461. Provision is made for the medical examination of asylum-seekers in the law on

refugees. Refugee centres must provide basic medical care 653.

648 The countries concerned are: Afghanistan, Albania, Algeria, Angola, Bangladesh, Benin, Bhutan, BurkinaFaso, Burundi, Cameroon, Cambodia, Cape Verde, Central African Republic, China, Chad, the ComorosIslands, Congo, Ivory Coast, Cuba, Djibouti, Dominican Republic, Egypt, Ethiopia, Fiji, Philippines, Gabon,Gambia, Ghana, Guinea, Guinea Bissau, Equatorial Guinea, Guyana, Haiti, India, Jordan, Iraq, Iran, Kenya,Laos, Lebanon, Liberia, Libya, Madagascar, Maldives, Mali, Morocco, Mauritania, Mauritius, Mongolia,Mozambique, Nepal, Niger, Nigeria, Pakistan, Palestine, Papua New Guinea, Rwanda, Sao Tome and Principe,Senegal, Sierra Leone, Syria, Somalia, Sri Lanka, Sudan, Surinam, Tanzania, Thailand, Togo, Tunisia, Uganda,Vietnam, Yemen, Zaire and Zambia.

649 Article 12 of the law of 5 April 1995 on the residence of foreigners on the territory of Slovakia.650 Idem.651 This information comes from the list established by the Federal Department of Foreign Affairs in Switzerland

in February 1997.652 Law of 24 August 1994 on health care.653 Articles 5 and 24 of law no. 283 of 14 November 1995 on refugees.


71. Czech RepublicA. Entry

462. Directives adopted in 1988 provided for screening for foreign students, airline

personnel, and persons returning from stays of over six months in Africa, Western Europe

or the USA 654. This text was replaced in 1992 by a new text that provides that AIDS

testing is theoretically voluntary and anonymous, except for refugees and persons

travelling to states which require HIV testing at the border 654b.


463. Foreigners requesting a long-term or permanent residence permit must provide proof

that they are not suffering from an infectious disease, the spreading of which is punishable

under the law 655. Notice no. 104/1987 from the Minister of Justice is based on penal code

no. 1/1991 in which AIDS is considered as a disease, the propagation of which is

punishable by law 656. In practice, it appears that immigration officers apply this medical

requirement only in specific cases, and that foreigners requesting short-term residence

permits are not asked to provide a medical certificate 657.

A foreigner may be refused a residence permit for a period exceeding one year if this

is necessary for the protection of health 658.

464. Persons living with HIV/AIDS have been expelled, notably Romanians and

Angolans 659.

465. Provision is made in the law on refugees for the medical inspection of foreigners

requesting refugee status 660. Refugee status may be refused in general where there is a

654 Methodological Directives of 1988 to ensure a uniform procedure for prevention of AIDS in the Czech SocialistRepublic.

654b New instructions in prevention and treatment of HIV infection, March 1992, articles 2 and 7, Directory of legalinstruments dealing with HIV infection and AIDS, o.c., p. 44.

655 Section 8 of law no. 123/1992 of 4 March 1992 governing the stay and residence of foreigners in the Czech andSlovak Republic.

656 Information provided by the Embassy of the Czech Republic in Brussels on 14 April 1997 and by theDepartment for Foreigners and Border Control in the Czech Republic on 17 April 1997.

657 Information provided by the Department for Foreigners and Border Control in the Czech Republic on 17 April1997.

658 Section 14 of the aforesaid law of 4 March 1992.659 EUROCASO, Report of the First Seminar on Law and HIV/AIDS, Amsterdam, 13-14 April 1991, p. 68.660 Section 7(2) of law no. 498 of 16 November 1990 on refugees.


threat to public policy 661 and is specifically mandatory for refugees through the new 1992

instructions (supra, § 462). Medical care is provided for people having been given

provisional refugee status 662.

F. Former Yugoslavia72. Former Federal Socialist Republic of Yugoslavia466. In the former republic, conclusions provided particularly for measures to be taken so

as to guarantee the respect of human rights and of the dignity of persons living with

HIV/AIDS and so as to prevent any form of discrimination including travel in Yugoslavia

and abroad 663.

73. CroatiaA. Entry

467. The Law on the Movement and Residence of Foreigners in the Republic of Croatia 664 does

not provide for restricting the entry or the movement of persons living with HIV/AIDS 665.

It does provide for the possibility of refusing entry to foreigners who compromise public

policy in general 666.


468. The law states that a visa application may be refused if the applicant comes from a

country in which an epidemic of a contagious disease is rife and if he has no vaccination

certificate 667. This provision would not seem to concern HIV/ AIDS directly as long as as

no vaccination exists against this illness.

469. The Law on the Protection of the Population against Infectious Diseases includes AIDS in

the list of diseases the prevention and control of which concern the interests of the

Republic, but does not restrict the liberty of movement of persons living with HIV/AIDS 668.

However, the Minister of Health may adopt special measures such as prohibition of travel to

661 Section 14 of aforesaid law no. 498.662 Resolution by the Czech government of 21 December 1994 relating to temporary recognition of the right of asylum.663 Conclusions no. 50-2/89 of 15 March 1989, IDHL, (1990), 41 (1), p. 66.664 Law of 1991.665 Information communicated by the Ministry of Health of Croatia on 27 May 1997.666 Article 3 of the Law of 1991 cited above.667 Article 18 of the Law of 1991 cited above.668 Information communicated by the Ministry of Health of Croatia on 27 May 1997.


certain countries and restrictions to the freedom of movement in infected or threatened

areas. There exists the possibility of restricting freedom of movement so as to protect the

population against transmitted diseases. The authorities may forbid the movement of

persons concerning whom it has been established or who are suspected of suffering from a

contagious disease 669.

470. According to the Ministry of Health, the policy is to follow the International Health

Regulation on Travel published in 1997, which contains no restrictions concerning AIDS 670.

471. A request for asylum may be refused for reasons of public policy in general 671; public

health is not expressly mentioned as grounds for refusal. Likewise, refugee status may be

withdrawn for reasons concerning public policy in general 672.

472. Medical protection is given to foreigners, but for a limited period 673. The law also

provides for rights to medical assistance for refugees 674.

74. MacedoniaA. Entry

473. Entry may be refused to foreigners if they come from an area that is infected by a

contagious disease and if they do not possess a vaccination certificate 675. This provision

could not be directly applied to AIDS, as long as no vaccination exists for this illness.


474. The right to residence may be denied a foreigner for reasons of public health 676.

669 Presidential Decree no. PA 4-71/92 of 25 September 1992 promulgating the law concerning the protection of thepopulation against transmitted illnesses, articles 59, 60, 61 and 62.

670 Information communicated by the Ministry of Health of Croatia on 27 May 1997.671 Article 33 of the Law of 1991 cited above.672 Article 43 of the Law of 1991 cited above.673 Article 36 of the Law of 1991 cited above.674 Law of 1993 on the status of displaced persons and refugees.675 Article 17 of the Law of 1992 on the movement and residence of foreigners.676 Article 30 of the Law of 1992 cited above.


475. The law prohibits expulsion if this would expose the foreigner to inhuman treatment 677.

According to the European Court of Human Rights, expulsion of foreigners living with

HIV/AIDS may, in certain circumstances, constitute inhuman treatment 678.

476. Refugee status may be refused in case of threat to the security and the defense of the

country 679 but not for reasons of health. The law provides for medical assistance to

refugees for a limited period 680.

75. SloveniaA. Entry

477. The law states that entry may be denied a foreigner coming from an infected area

and who does not produce a vaccination certificate 681. The same provision is found in the

legislations of Croatia and Macedonia examined above (§§ 468 and 473).


478. The right to residence may be refused for the same reasons as those mentioned

in § 477 682.

With a view to protecting public health, the right to residence may be withdrawn

from a foreigner staying in the country on the basis of a foreign passport, an entry visa, an

international convention or a temporary residence permit 683.

479. Expulsion must be avoided if this would expose the foreigner to a risk of inhuman

treatment 684. Inasmuch as this provision resembles the one existing in the legislation of

Macedonia, the reader should refer to the commentary made about this country (§ 475).

480. Medical protection for a limited period is granted to foreigners having acquired

refugee status 685.

677 Article 39 of the Law of 1992 cited above.678 See. D. v. United Kingdom, supra §§ 76ff.679 Article 47 of the Law of 1992 cited above.680 Article 51 of the Law of 1992 cited above.681 Article 10 of the Foreigners’ Act of 1991.682 Article 19 of the Act cited above.683 Article 23 of the Act cited above.684 Article 33 of the Act cited above.685 Article 39 of the Act cited above.


C. Miscellaneous

481. The Office for Immigration and Refugees is entrusted with supervising procedures of

medical testing for those asking for asylum, refugees and other immigrants 686.

G. Community of Independent StatesThe majority of CIS States have adopted, more than others, specific provisions

concerning AIDS and in particular restricting the free movement of persons.

76. The Former Union of Soviet Socialist Republics482. At the time of the USSR, a regulation contained several provisions concerning the

free movement of persons living with HIV/AIDS 687. This ruling is still in force in the

Russian Federation (infra, § 520) 688. According to this regulation, the following persons

must undergo the AIDS test: Soviet citizens returning from missions or voyages abroad of

a duration of over three months, foreign nationals and stateless persons who have come

to the USSR for the purposes of study, work or other purposes, Soviet citizens travelling

abroad to countries that require this test, and Soviet citizens and foreign nationals who

have had sexual contacts with persons suffering from the HIV virus or AIDS.

The ruling provides for the right of foreign national to ask for a member of the medical

staff or an Embassy official to be present when the blood sample is taken (article 7), the

right to ask for a medical report concerning the results of the examination (article 8) and

the right to ask to undergo a second examination in another establishment (article 9).

Diplomatic staff are not required to undergo obligatory testing (article 10).

686 Decree of 1992 on the establishing of an office for immigration and refugees.687 Regulation of 4 October 1990 on medical testing for detection of the human immunodeficiency virus (AIDS), IDHL,

(1991), vol. 42 (1), p. 21.688 Directory of legal instruments dealing with HIV infection and AIDS, o.c., p. 149.


77. ArmeniaA. Entry

483. The law does not envisage denial of the right of entry for reasons of public health 689.

The law states that entry may be denied the foreigner but does not stipulate the reasons

for this denial 690. Foreigners in the exercise of their freedom must respect public policy

in general 691.


484. The law does not envisage the possibility of denial of the right of residence for

reasons of health 692. Danger to public policy is mentioned in the list of reasons for

expulsion, but not public health 693.

78. BelarusA. Entry

485. Foreigners and stateless persons may be refused the right of entry for reasons

of health 694.


486. The law permits expulsion of a foreigner when this is necessary for public health 695.

Expulsion of foreign nationals and stateless persons who refuse to undergo an

examination in order to detect infection by the human immuno-deficiency virus is

authorized 696. It should be noted that diplomatic staff cannot be required to undergo a

test unless they have given their prior consent.

689 Law of 17 June 1994 on the Status of Foreigners.690 Article 9 of the Law of 17 June 1994 cited above.691 Article 25 of the Law of 17 June 1994 cited above.692 Law of 17 June 1994 cited above.693 Article 32 of the Law of 17 June 1994 cited above.694 Law of 3 June 1993 on the legal status of aliens and stateless persons in the Republic of Belarus, article 20.695 Article 25 of the Law of 3 June 1993 cited above.696 Law of 18 June 1993 on public health.


487. Refugees are required to undergo a medical examination and they have the right to

medical help 697. The rights of foreigners requesting refugee status may be restricted for

various reasons, particularly those of health 698. This provision raises questions of

compatibility with current international norms.

79. EstoniaA. Entry

488. The law does not provide for refusal of entry for reasons of public health 699.


489. The law does not provide for the possibility of refusing the right to residence for

reasons of health 700. Nevertheless, in order to obtain a residence or work permit,

foreigners must produce a medical certificate 701, which must mention an AIDS test,

which must have been performed less than four months previously. This test must have

been performed in the foreigner’s home country or in one of the ‘AIDS’ centres existing

in Estonia 702.

80. GeorgiaA. Entry

490. Right of entry may be denied foreigners and stateless persons in order to protect

health 703. The law imposes on persons applying for the right of permanent residence the

obligation of undergoing a medical examination 704. Entry is denied if the person is

suffering from AIDS 705.

697 Article 8 of the Law of 22 February 1995 on Refugees.698 Article 12 of the Law on refugees cited above.699 Alien’s Act of 8 July 1993.700 Article 12 of the Law of 8 July 1993 cited above.701 Article 22 of the Regulation of 21 September 1993 for the issue and extension of residence permits and employment

permits to aliens.702 Information communicated by the Embassy of Estonia in Brussels on 24 April 1997.703 Law of 3 June 1993 on the legal status of aliens, article 23.704 Article 5 of the Immigration Act of 27 July 1993.705 Articles 4 and 5 of the Act of 27 July 1993 cited above.



491. The movement of foreigners and the choice of their residence may be limited when

this is necessary for the protection of national security, public policy, or public health 706.

492. Foreigners may be denied the right of permanent residence if they are suffering

from AIDS, from a venereal disease or from other diseases mentioned in the list defined

by the Minister of Health 707. Article 4, 4° speaks of AIDS and not of HIV positive status.

The law states that citizens and persons residing temporarily or permanently in the

country have the right to undergo the AIDS test 708. Foreigners who come to the country

for more than one month must possess a certificate proving that they have had the test.

An exception is the case of diplomatic staff for whom individual consent is required.

In the case of persons working in NGOs and other organizations, the question is resolved

on the basis of the existence of multilateral agreements 709. Citizens and foreigners

residing temporarily or permanently living with HIV/AIDS are obliged to submit to

preventive measures 710.

493. Foreigners have the right to medical assistance 711. Citizens and foreigners residing

temporarily or permanently in the country have the right to medical help even if they are

HIV positive or suffering from AIDS 712.

494. The legislation in force permits ordering the expulsion of a foreigner in order to

protect health 713.

706 Article 18 of the Law of 3 June 1993 cited above.707 Article 4 of the Act of 27 July 1993 cited above.708 Article 3 of the Law of 21 March 1995 on the Prevention of HIV/AIDS in Georgia.709 Article 4 of the Law of 21 March 1995 cited above.710 Article 6 of the Law of 21 March 1995 cited above.711 Article 9 of the Law of 3 June 1993 on the legal status of aliens.712 Article 8 of the Law of 21 March 1995 cited above.713 Article 29 of the Law of 3 June 1993 cited above.


81. KazakhstanA. Entry

495. Entry may be refused in the interests of security, public policy or of the health of

the population 714.


496. Refusal of residence for reasons of public health is not expressly provided for by the

legislation on immigration. The law states that residence may be denied when the

foreigner has committed an offence or a crime against humanity or ‘other reasons’ 715.

497. The freedom of movement of foreigners may be limited for reasons of health 716.

498. Foreigners have the right to medical assistance 717.

499. A test is required of foreigners who wish to reside in the country 718. Citizens and

foreigners or stateless persons have the right to have an AIDS test 719. Citizens and

foreigners or stateless persons are required to undergo a test if there are sufficient reasons

to presume that they are infected by the AIDS virus 720. Diplomatic and consular staff may

be tested only if the person concerned gives his consent. Foreigners who wish to stay

more than three months in the country must present a certificate attesting their HIV

negative status 721.

500. Current legislation authorizes the expulsion of foreigners when this is necessary for

the protection of health 722. Foreigners residing on the territory who refuse to undergo an

714 Article 22 of the Law of 19 June 1995 on the legal status of aliens.715 Article 25 of the Law of 26 June 1992 on immigration.716 Article 16 of the Law of 19 June 1995 on the legal status of aliens.717 Article 7 of the Law of 19 June 1995 cited above.718 AIDS Surveillance in Europe, Quarterly Report no. 42, 30 June 1994, European Centre for the Epidemiological

Monitory of AIDS, St. Maurice, France, p. 26.719 Law of 5 October 1994 on the prevention of AIDS.720 Article 6 of the Law of 5 October 1994 cited above.721 This information is drawn from the list established by the Federal Department of Foreign Affairs in

Switzerland in February 1997.722 Article 28 of the Law of 19 June 1995 cited above.


examination, who are infected by the HIV virus or who are suffering from AIDS, are

expelled from the territory 723. Foreigners whose spouse is a citizen of Kazakhstan are

not expelled 724.

82. KyrghyzistanA. Entry

501. Refusal of entry for reasons of health is not provided for expressly by the legislation

on immigration, which does permit refusal of entry in the interests of security or of the

protection of public policy, in the interests of the citizens of the Republic, when the

foreigner concerned has broken the law, when he has given false information or does not

produce certain documents, or else ‘for other reasons’ provided for by the national

legislation 725.

502. The law provides for the possibility of limiting the freedom of movement of

foreigners for various reasons, particularly those of health 726.



504. Foreigners may be expelled if this is necessary for the protection of health 728.

83. LatviaA. Entry

505. The legislation on immigration does not envisage refusal of access to the territory for

reasons of public health 729.

723 Article 6 of the Law of 5 October 1994 cited above.724 Idem.725 Article 6 of the Law of 14 December 1993 on the order for residence of aliens.726 Article 18 of the Law of 14 December 1993 cited above.727 Article 9 of the Law of 14 December 1993 cited above.728 Article 24 of the Law of 14 December 1993 cited above.729 Law of 9 June 1992 on the Entry and Residence of Foreign Citizens and Stateless Persons in the Republic of Latvia.



506. A residence permit may be denied to foreigners suffering from an illness or a physical

condition – the nature, gravity and potential duration of which constitute a threat for

public security and health or which requires the special surveillance of a health

institution, or from an illness or state of health mentioned in the list established by the

Minister 730. Foreigners applying for a work permit for over three months must prove their

negative HIV status 731.

507. Expulsion may be justified by reasons of public policy. Public health is not

mentioned by the law expressly as a reason for expulsion 732.

84. LithuaniaA. Entry

508. Access to the territory must be refused to foreigners if their entry constitutes a

danger for national security, public policy, health or morals 733. There is no specific

legislation applicable to the entry or residence of foreigners living with HIV/AIDS 734.

Nevertheless, it appears from information on practice concerning residence that the

health restrictions include AIDS.


509. A permanent residence permit must be refused to foreigners suffering from serious

and contagious diseases 735. Foreigners requesting a permanent right of residence must

undergo the AIDS test 736.

510. Foreigners cannot obtain the right to asylum if they are suffering from a contagious

disease or refuse a medical control in case they are suspected of suffering from such a

730 Article 35 of the Law of 9 June 1992 cited above.731 This information is drawn from the list established by the Federal Department of Foreign Affairs in

Switzerland in February 1997.732 Article 53 of the Law of 9 June 1992 cited above.733 Article 27 of the Law on the Legal Status of Foreigners.734 Information communicated by the Embassy of Lithuania in Brussels on 28 August 1997.735 Article 5 of the Immigration Act of 4 September 1991.736 This information is drawn from the list established by The Laboratory Centre for Disease Control in June 1997.


disease. This text raises problems of compatibility with international norms 737. Those

requesting asylum must undergo a medical examination 738.

85. MoldovaA. Entry

511. Access to the territory of Moldova is forbidden for foreign citizens and stateless

persons living with HIV/AIDS 739.


512. The law does not mention public health among the reasons for refusal of the right of

entry 740. Nevertheless, foreigners and stateless persons must undergo an AIDS test 741.

Citizens and foreigners or stateless persons who live in the country or are temporarily

present there are obliged to undergo a medical examination if there are reasons for

suspecting such persons of having been infected with the AIDS virus 742. The right of

residence for over three months is conditional on the proof of a test showing HIV

negative status 743. All foreigners who do not possess such proof are obliged to present

themselves within 10 days at the competent institution in order to undergo the test.

Subsequently, this procedure will be repeated once a year.

513. Foreigners may be expelled for reasons of health 744. Foreign citizens and stateless

persons with temporary residence in Moldova who avoid the AIDS medical examination

are expelled in conformity with current legislation 745. Foreigners and stateless persons with

temporary residence in Moldova who are discovered to be carriers of the virus or to be

suffering from AIDS are expelled from the country 746. This measure seems to concern only

those foreigners benefitting from a right to temporary residence. Foreigners and stateless

persons with stable residence in Moldova have a right to medical and social insurance 747.

737 Article 4 of the Law of 4 July 1995 on the Status of Refugees in the Republic of Lithuania.738 Article 13 of the Law of 4 July 1995 cited above.739 Article 11 (1) of the Law of 25 May 1993 on prevention of the illness HIV/AIDS.740 Article 9 of the Law of 10 November 1994 on the legal status of aliens and stateless persons.741 Article 8 of the Law of 10 November 1994 cited above.742 Article 3 (1) of the Law of 25 May 1993 cited above.743 Article 11 of the Law of 25 May 1993 cited above.744 Article 23 of the Law of 10 November 1994 cited above.745 Article 5 of the Law of 25 May 1993 cited above.746 Article 12 of the Law of 25 May 1993 cited above.747 Article 8 of the Law of 25 May 1993 cited above.


86. MongoliaA. Entry

514. All citizens must undergo medical examinations and detection tests required by an

establishment of health care in order to determine whether they are infected by the HIV

virus. This provision is also applied to all foreigners or stateless persons in the country 748.

Foreign students must undergo a test 749.


515. The law states that all foreign nationals or stateless persons infected by

HIV/AIDS who refuse to comply with instructions delivered by the competent health

organizations must become the object of an expulsion order in conformity with the

legislation of Mongolia 750.

87. UzbekistanA. Entry

516. A resolution makes the ministers and other authorities concerned responsible for

supplying in due time the territorial authorities of the State Health and Epidemiologic

Services with reliable data on groups or persons from countries in which quarantine

diseases and AIDS are rife, with the indication of their itinerary and the place and

duration of their stay in the country so as to be able to submit them, if required, to

medical observation 751. The same resolution makes the competent authorities responsible

for informing foreign representations of the modifications operated in the medical

requirements applicable to entry to the territory. The resolution states that the authorities

must forbid the presence on the territory of nationals from countries ‘where AIDS is rife’

if they do not possess a certificate proving that they have had the test. For Africa, the

countries concerned are Burundi, Congo, Ivory Coast, Ghana, Guinea-Bissau, Kenya,

Malawi, Mozambique, Rwanda, Sierra Leone, Tanzania, Zaire, Zambia and Zimbabwe.

748 Article 1 of Decree no. 103 of 26 June 1989 of the Presidium of the Great Khural of the Mongolian People’sRepublic on measures to prevent Acquired Immuno-Deficiency Syndrome, IDHL, 1989, 40 (4), p. 803.

749 This information is drawn from the list established by The Laboratory Centre for Disease Control in June1997.

750 Article 12 of the Law of 1 March 1994 on the prevention of the Acquired Immuno-Deficiency Syndrome (AIDS).751 Resolution no. 12 of 17 November 1992 introducing preventive measures against the introduction and the spread of

quarantinable diseases and of AIDS into the Republic of Uzbekistan, IDHL, 1994, 45 (1), p. 32.


For America, the countries concerned are Brazil, Martinique, Mexico and the USA. In

Europe, the countries concerned are Belgium, France, Germany, Italy, Netherlands,

Spain, Sweden, Switzerland and the United Kingdom. Persons bearing a certificate on

their arrival but who remain for more than one month must undergo a new test at their

place of residence.

Similar provisions have been adopted to those in Russia 752.


517. The above-mentioned resolution makes the authorities responsible for expelling

persons living with HIV/AIDS.

C. Miscellaneous

518. The authorities must require of all citizens going abroad to hold a medical

certificate. The Uzbek Tourist Organization must concert with the Minister of Health

on the possibility of travelling to certain countries on the basis of the epidemiological

situation of these countries and must organize medical follow-up of tourists who

travel abroad 753.

The Uzbek Tourist Organization must see to it that a medical service and isolation

rooms be available in hotels for foreign tourists.

88. RussiaA. Entry

519. Foreigners and stateless persons may be refused entry to Russia if they apply for a

right to residence for over three months and do not present the results of an HIV test 754.

Diplomatic representations or consular services deliver a Russian entry visa to foreign

nationals for a stay of more than three months on condition that the applicants present a

certificate showing that they are not infected by the HIV virus saving contrary provisions

of international agreements to which Russia is party 755.

752 Regulation of 1991 on the medical testing to detect the Human Immuno-Deficiency Virus (AIDS) and on preventivesurveillance which largely repeats the provisions of the Ruling of 4 October 1990 on the same subject adoptedin Russia.

753 Resolution no. 12 cited above.754 Article 27 of the Law of 15 August 1996 on the procedure for exit from the Russian Federation and entry into the

Russian Federation.755 Article 10 of Federal Law no. 38 of 30 March 1995 on the prevention of the spread in the Federation of Russia of the

affection caused by the Human Immuno-Deficiency Virus (HIV infection), IDHL, 1995, 46 (3), p. 318.



520. The law states that foreigners and stateless persons living with HIV/AIDS must be

expelled 756. The previous provisions of the former USSR are still applicable (supra § 482).

521. Refugees have the right to access to medical assistance 757. Displaced persons also

have this right and must undergo a medical examination 758.

89. TajikistanA. Entry

522. Entry may be denied to foreigners in the interests of national security or of public

policy, in the interest of the citizens, if the foreigners have broken the law or given false

information or ‘for other reasons’ 759.


523. The law permits restriction of the right to free movement for foreigners for reasons

of health 760.

524. Foreigners may be expelled for the protection of health 761. It has not been shown

whether this general legislation covers AIDS.

525. Foreigners have a right to medical assistance 762.

526. Candidates for refugee status must undergo medical testing and have the right of

access to health services 763. Candidates for the status of displaced persons must also

undergo a medical examination and they have the right to medical assistance 764.

756 Article 11 of the Law of 30 March 1995 cited above.757 Article 7 of the Law of 19 February 1993 on refugees.758 Article 4 of the Law of 20 December 1995 on displaced persons.759 Article 24 of the Law of 1 February 1996 on the legal status of aliens.760 Article 19 of the Law of 1 February 1996 cited above.761 Article 31 of the Law of 1 February 1996 cited above.762 Article 9 of the Law of 1 February 1996 cited above.763 Law of 20 July 1994 on Refugees.764 Law of 20 July 1994 on Displaced Persons.


90. TurkmenistanA. Entry

527. The law disposes that entry may be denied to foreigners in the interests of national

security or of public policy, in order to protect the interests of the citizens, if the

foreigners have broken the law or given false information or ‘for other reasons’ established

by the national legislation 765.


528. Restrictions may be applied to freedom of movement for foreigners for different

reasons, particularly those of health 766.


530. Testing is obligatory for foreign nationals and stateless persons requesting a medical

consultation, in conformity with the clinical signs 768. Diplomatic and consular staff may be

made to undergo testing only following individual consent. The testing is perfomed in the

state medical establishments. Foreign nationals and stateless persons, as well as citizens who

undergo the test, may ask for a second test to be performed in another establishment.

531. Foreigners may be expelled when this measure is necessary in order to protect

public health 769.

C. Miscellaneous

532. Citizens of Turkmenistan travelling abroad must undergo the test if the country of

destination requires a certificate of testing for infection by the HIV virus 770.

765 Article 24 of the Law of 8 September 1993 on the legal status of aliens.766 Article 19 of the Law of 8 September 1993 cited above.767 Article 9 of the Law of 8 September 1993 cited above.768 Regulation of 7 June 1995 on HIV/AIDS testing in Turkmenistan, IDHL, 1995, 46 (4), p. 475.769 Article 3 of the Law of 8 September 1993 cited above.770 Ruling of 7 June 1995 cited above.


91. UkraineA. Entry

533. Current legislation permits refusal of access to the territory for foreigners when such

refusal is necessary in order to protect public health 771. As regards business or tourist visits

or short stays, no medical certificate is required of foreigners.


534. Restrictions may be applied to the freedom of movement of foreigners, for reasons of

health, among others 772.

Foreigners have the right to medical assistance 773.

535. Foreigners and stateless persons residing or present on the territory have the right to

undergo testing and to be informed of the results 774. Foreigners and stateless persons

residing in the country in order to study or to exercise an activity must undergo testing.

The following categories of persons are dispensed from this requirement: persons

possessing the certificate provided for in a relevant agreement between the Ukraine and

another state, and diplomatic and consular staff 775. Foreigners applying for the right of

permanent residence must present, before they leave for Ukraine, a complete medical

certificate (including the results of the AIDS test). The Ukrainian authorities examine

the applications individually 776.

536. Expulsion for reasons of public health is provided for by the law 777. Foreigners and

stateless persons infected with the HIV virus undergo administrative expulsion in

conformity with the legal procedure 778. Foreign nationals and stateless persons whose

spouse is a Ukrainian citizen do not undergo expulsion.

771 Article 25 of the Law of 4 February 1994 on the legal status of aliens.772 Article 20 of the Law of 4 February 1994 cited above.773 Article 10 of the Law of 4 February 1994 cited above.774 Article 6 of the Law of 12 December 1991 on the prevention of AIDS and the social protection of the population,

IDHL, 1993, vol 44 (2), p. 223-228.775 Article 8 of the Law of 12 December 1991 cited above.776 Information communicated by the Embassy of Ukraine in Brussels on 2 April 1997.777 Article 32 of the Law of 4 February 1994 cited above.778 Article 12 of the Law of 12 December 1991 cited above.


537. Candidates for refugee status must undergo medical testing at the request of the

authorities. Candidates for refugee status and those who have acquired it have the right

to medical assistance 779.

C. Miscellaneous

538. Citizens and foreigners or stateless persons infected by the HIV virus or suffering

from AIDS who are resident or present on the territory have the right:

■ to social relations characterized by respect and humanity, excluding all forms of

denigration of human dignity;

■ to demand confidentiality for the data concerning the state of their health, if the

conditions and characteristics of their life and their work do not represent a threat of

infection for other people;

■ to indemnization for prejudice connected with the restriction of their rights

following publishing of information to the effect that such people are infected by the

HIV virus;

■ to a professional activity in a profession of their choice with the exception of a

specialized activity or a post contained in a special list;

■ to a free supply of medicine necessary for the treatment of any illness they may

suffer from;

■ to transport to or from the place of their treatment at the expense of the

establishment of therapeutic care that delivered the order of treatment;

■ to dispose of an isolated habitable room 780.

It is most surprising to discover a list of ‘rights’ in a general context of discriminatory

treatment. More particularly, as regards foreigners, inasmuch as the expulsion of persons

living with HIV/AIDS can be ordered, the interest of these ‘rights’ is more than debatable.

779 Law of 24 December 1993 on refugees.780 Article 17 of the Law of 12 December 1991 cited above.

Generalconclusions

208 The Free Movement of Persons Living With AIDS – General conclusions

539. The book is divided into three parts. Part one examines the principles of international

and European law which apply to the problem of the free movement of persons living with

HIV/AIDS (paragraphs 1 to 56). Parts two and three examine the travel restrictions which

have been placed by European Union countries (paragraphs 57 to 223) and non-EU

countries (‘third countries’) (paragraphs 224 to 538) on persons living with HIV/AIDS.

The present general conclusions set out the main facts which are established by the

study as a whole (1), examine the conclusions which can be drawn from them (2), and

formulate certain proposals for both the short- and the long-term (3).

1. The main facts540. Facts can be established at three levels: those of national law (A), European law (B),

and international law (C).

A. National law541. The study has examined legislation and practice in 106 countries. Since the study

concerned the movement of persons living with HIV/AIDS in the frame of the

relationship between Europe and the developing countries, the 15 Member States of the

European Union and the states of Eastern Europe, Asia, Africa, South and Central

America have been studied.

542. Taking all the different countries together, we can distinguish four types of legislation:

■ legislation which does not place any limit on the movement of persons living with

HIV/AIDS or any restriction relating to public health in general;

■ legislation in the area of immigration, which permits general limits to be placed on

the principle of the free movement of persons, based on public health;

■ legislation which introduces limitations specific to AIDS, aimed at limiting the

movement of persons living with HIV/AIDS. These can be laws specific to AIDS or

laws covering immigration in general;

■ legislation outlawing limitations specific to AIDS, with a view to eliminating

restrictions on the free movement of persons living with HIV/AIDS. These can be

laws specific to AIDS or laws covering immigration in general.

The Free Movement of Persons Living With AIDS – General conclusions 209

543. Of these four categories of legislation, the second is the one most frequently

encountered.

It is in most cases general legislation covering immigration which is used as a means,

at the national level, of restricting the free movement of persons living with HIV/AIDS.

These restrictions generally derive from provisions which make it possible to refuse access

to the national territory or the right to stay in it to foreigners for reasons of public health.

Similar restrictions could also result from national legislation which encourages the use of

local labour in order to combat the epidemic 781.

544. Both in European Union Member States and in third countries, restrictions, where

they exist, relate generally to foreigners requesting permits for long-term visits, to the

exclusion of foreigners applying for short-term visits (§ 84 and § 244 supra).

This situation is explained mainly by economic reasons, with states not wanting to

pick up the cost of treatment and health care which the sickness can occasion (for the

WHO’s position on economic justifications, see § 550 infra).

Two items must be remembered here. First of all, Directive 64/221 states that limits

on the free movement of persons which are justified by reasons of public policy or public

health may not be used to pursue economic ends (§§ 35 et seq., supra). Although this rule

directly concerns only citizens of the European Union, it could also guide the

interpretation of the principles which apply to third country nationals. On the other

hand, the distinction between short- and long-term residence appears difficult to justify

in terms of protection against AIDS in so far as the migrant who settles permanently in a

country and is joined by his or her family will have less frequent ‘high risk’ sexual

relations than the occasional business or tourist traveller (including sex tourism).

545. In the case of European Union Member States, the restrictions which apply to

long-term visits are directed essentially at third country nationals and at times certain

categories of third country nationals such as students. We note a lack of uniformity

within Union countries with regard to the policy applied to third country nationals

(§ 59 supra).

781 This solution has for example been recommended in the work A. WHITESIDE, Integration of the HIV/AIDSproblematic in development assistance, A Toolkit.


B. European law546. Within European law, there is no binding text relating to the free movement of

persons living with HIV/AIDS. Should we deduce from this that limits to the free

movement of persons living with HIV/AIDS are authorized by European law? We should

answer negatively. According to case law and authors, restrictions to the principle of the

free movement of persons ought to be interpreted in a restrictive fashion. Directive 64/221,

which covers the limits applicable in the area of public health, does not expressly mention

HIV/AIDS. Some legal experts deduce from this that no restriction is possible (§ 50 supra).

There is reason to conclude that, at a minimum, AIDS screening is excluded when

crossing internal borders, quasi-excluded for Union citizens crossing the external borders

or having residence in another Union State, and difficult for developing country

nationals given the principles of proportionality and non-discrimination (§ 554 infra).

C. International law547. As in European law, there is no binding text (treaty, convention) in international

law relating specifically to the free movement of persons living with HIV/AIDS. The

main sources are the position of the WHO [item a] and various declarations or resolutions

concerning fundamental rights [item b]. These texts fall into the area of ‘soft law’, i.e.

non-binding law. Nonetheless, they can usefully guide the interpretation of a

fundamental human right, that of the principle of non-discrimination. This principle is

inscribed in the main texts protecting fundamental rights 782. These texts condemn, in a

general way, any discrimination based on membership of a particular social group, or more

widely, on ‘any situation’ 783. However, this principle of non-discrimination applies only to

human rights and to the fundamental freedoms guaranteed by the same texts. However,

whilst these texts recognize the right for every person to leave any country, they do not

recognize the right to enter another country 784. In other words, apart from certain

782 Article 2 of the Universal Declaration of Human Rights of 10 December 1948, article 14 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, article 1 ofthe American Convention on Human Rights of 22 November 1969, article 2 of the African Charter ofHuman and Peoples’ Rights of 28 June 1981, article 3 of the Universal Islamic Declaration of Human Rights of19 September 1981.

783 Article 2 of the Universal Declaration of Human Rights.784 The Universal Islamic Declaration however states that ‘Given the fact that the Islam world is truly Ummah

Islamia, any Muslim must have the right to enter freely into and leave freely from any Muslim country’.


regional integrations like the European Union, there is no absolute right to free

movement, and hence no absolute condemnation of discrimination in these areas. The

fact remains that non-discrimination is tending to become a general principle having

autonomous force. Overtly discriminatory treatment of a particular category of persons, as

would be the case of persons living with HIV/AIDS, needs then to be examined with

regard to the proportionality between the legitimate objective which might be pursued

and the means used (§§ 13 to 19 and § 87 supra and § 554 infra).

a) The position taken by the WHO 785

548. The WHO is opposed to the imposing by states of restrictions in the area of travel,

at least on short stay visits. For longer visits, the WHO’s position is more nuancé.

WHO’s policy distinguishes between restrictions which are introduced by states for

reasons of public health, and restrictions introduced for economic reasons.

549. With regard to restrictions introduced by states with respect to persons living with

HIV/AIDS and which these states justify on grounds of public health, the WHO’s

position is to state that such measures are unfounded. In particular it argues that:

■ States cannot in any event prevent their nationals from travelling and so avoid

any risks attached to travel.

■ Screening is not perfectly reliable, as a person can test seronegative when in fact

he or she is in the process of developing the virus.

■ A false sense of security is created within the population, which comes to think

that AIDS is a ‘foreign’ problem which can be solved by border controls.

■ HIV/AIDS can be passed on only in specific circumstances and not by

day-to-day contact.

■ AIDS is already present in every country in the world.

785 See: Report of the consultation on international travel and HIV infection, Geneva, 2-3 March 1987; Backgroundpaper for a preparatory meeting for a consultation on long-term travel restrictions and HIV/AIDS, Geneva, 4-6 October 1994; Report of the preparatory meeting for a consultation on long-term travel restrictions andHIV/AIDS, Geneva, 4-6 October 1994; WHO policy of non-sponsorship of international conferences on AIDS incountries with HIV/AIDS-specific short-term travel restrictions, February 1993.


■ It is impossible to close frontiers effectively and permanently.

■ Restrictions may lead people to enter a country illegally and, because of their

clandestine status, not use preventive measures.

■ Restricting travel is expensive, and funds should be used instead for education and

promotion activities.

These various reasons led the WHO to adopt in 1987 a declaration on the screening

of international travellers for infection by the Human Immuno-Deficiency Virus, which

states that no programme of testing international travellers can avoid the introduction

and propagation of HIV infection.

550. With regard to restrictions on travel, for which the reasons put forward are the

economic costs in relation with long-term residence, the WHO has emphasized the

following principles which ought to be applied by states which impose such measures:

■ States must not forget that the movement of persons, and in particular of workers, is

economically beneficial.

■ Restrictions are justified only when one can effectively expect that a call for

financial assistance will present itself.

■ Restrictions are founded only if the costs linked to HIV/AIDS are equal to or higher

than those of other sicknesses for which similar measures apply.

■ The cost of the financial support exceeds the benefits which are expected from

admitting the traveller.

■ The principles of international law need to be respected.

■ Where screening is required, it is important to respect the principle of the consent of

the person and the principle of confidentiality.

Faithful to its policy, the WHO has refused to sponsor conferences in countries

which apply restrictions on short-stay visits by persons living with HIV/AIDS, motivating

its decision with the fact that discrimination based solely on seropositive status is not

justified at the level of public health, violates human rights and stigmatises persons living

with HIV/AIDS. On this occasion, the WHO reaffirmed its rejection of any form of

discrimination based solely on HIV/AIDS, including in this long stay visits.


b) Human rights declarations551. In various parts of the world declarations on AIDS have been adopted at the inter-

state level, frequently in the context of international conferences. These declarations are

of interest to the movement of persons living with HIV/AIDS, either because they

expressly guarantee the principle of free movement of these persons, or because, more

generally, they forbid discrimination against persons living with HIV/AIDS.

However, all these texts are declarations of principle, and lack any binding force per se.

552. By way of example we can mention the following declarations:

■ Recommendation no. R(89) 14, of 24 October 1989, of the Committee of Ministers

of the Council of Europe on the ethical effects of HIV infection in its health and social

aspects (§ 14 supra), items 46 and 47 of which state that: ‘It is recommended that

public health authorities should refrain from introducing restrictions on freedom of

movement by means of costly and ineffective border procedures for all categories of

travellers, including migrant workers’. It will be noted that this recommendation is

close to the policy adopted by the WHO, whilst being more extensive in that it

categorically excludes AIDS controls at borders, both for long and short stay

travellers, whereas the WHO’s policy towards long stay travel is more nuancé.

■ The South African AIDS Consortium’s Charter of Rights relating to AIDS and HIV

dd. 24 March 1992 786 states in article 1.1 that ‘persons living with HIV/AIDS enjoy

the same rights as the rest of the population with regard to the principles of liberty,

autonomy and freedom of movement’. Article 1.2 states that ‘restrictions based on

HIV/AIDS should not created with respect to the free movement of persons in and

between states’ 787.

■ The Cebu Declaration of 3 May 1993 788 states that persons living with HIV/AIDS

should be sheltered from any form of discrimination.

786 Approved by the representatives of 40 organisations.787 On this charter, see also: D. FINE, M. HEYWOOD and A. STRODE, HIV/AIDS and the law, published by the

AIDS Law Project and Lawyers for Human Rights, South Africa, May 1997, p. 275.788 Approved by participants at the Inter-Country Conference on Law, Ethics and HIV, which was held at Cebu

in the Philippines from 3 to 6 May 1993.

■ The Dakar Declaration of 1 July 1994 789 confirms the principle of non-

discrimination, stating that ‘any person directly affected by the epidemic must

remain an integral part of his or her community with the same rights (...) to freedom

of movement (...)’. The same declaration states that ‘any HIV screening without

prior informed consent must be proscribed’ and that ‘HIV screening must not be

demanded for access to work, travel or any other service’.

■ The New Delhi Declaration and Action Plan of December 1995 on HIV/AIDS 790

makes provision for different national legislative initiatives, and in particular a ban

on discrimination in various areas, including travel.

■ International directives on HIV/AIDS and human rights were prepared with a view

to the second international consultation on HIV/AIDS and human rights, which

was held in September 1996 at Geneva, where they were adopted 791. Directive no. 3

articulates in particular that states must ‘make sure that screening tests take place

with the informed consent of the person undergoing them’. According to Directive

no. 5, states also need to ‘promulgate anti-discriminatory laws or strengthen existing

laws to protect persons suffering from HIV/AIDS, whether or not they present

symptoms, persons suspected of being seropositive and groups rendered vulnerable

to infection due to the discrimination which they suffer’. The same directives assert


789 This declaration was drawn up and approved by participants at the inter-country consultation of the AfricanNetwork on Ethics, Law and HIV/AIDS organized at Dakar, Senegal, from 27 June to 1 July 1994, by theUNDP’s HIV and Development programme. Participants came from the following countries and organizations:South Africa, Côte d’Ivoire, Ghana, Kenya, Uganda, the Central African Republic, Rwanda, Senegal, Zambia,the WHO’s Global Programme on AIDS, the WHO’s African Regional Office, the UNDP’s ManagementDevelopment and Governance Division, the UNDP’s HIV and Development project for Asia and the Pacific,the Asian and Latin American networks on ethics, law and HIV, AFRICASO, the Association of AfricanLegal Experts, ENDA Third World, the pan-African AIDS Prevention organization, ORSTOM and theAfrican Network of Persons Living with HIV/AIDS.

790 Approved by participants at the International Conference held from 6 to 10 December 1995 at New Delhi onthe topic of ‘AIDS-law and humanity’.

791 On the subject of this directive, see: An advocate’s guide to the international guidelines on HIV/AIDS and humanrights, prepared by ICASO, October 1997 and the NGO Summary of the International Guidelines on HIV/AIDSand human rights, prepared by ICASO. The Geneva consultation was attended by 35 experts, includinggovernment representatives, human rights defenders, academics, representatives of regional and nationalexperts working in the areas of ethics, law and human rights, representatives of the United Nations, NGOsand AIDS prevention organizations. Since publication, the directives have been officially adopted by twoUnited Nations bodies: the Human Rights Commission and the Sub-Commission on Prevention ofDiscrimination and Protection of Minorities.

in particular that states should ‘abrogate laws, regulations and practices which

restrict the freedom of movement and association of members of vulnerable groups

within the context of HIV/AIDS’. Finally, according to Directive no. 8, states

should ‘support the setting up of HIV prevention programmes and of suitably

adapted care for persons who find it more difficult to access national programmes,

for linguistic or economic reasons, or because they are marginalized’. This includes

in particular migrants and refugees.

■ Many South American countries have adopted recommendations concerning

AIDS, as called for at the third Ibero-American conference of presidents and

governments in 1993. These recommendations provide among other things that

South American countries should scrap the requirement for AIDS screening as a

prerequisite for obtaining a visa. Our study shows that so far these recommendations

have been little applied 792.

553. All the facts that we have established show that neither international law, nor

European law nor national law, with a few rare exceptions, formally bans restrictions on

the free movement of persons living with HIV/AIDS. On the other hand, neither

international law, nor European law, nor national law, with a few rare exceptions,

expressly authorizes restrictions on the free movement of persons living with HIV/AIDS.

The question then becomes pretty simple. Is what is formally neither forbidden nor

authorized in fact forbidden or authorized? What is not forbidden is in principle

authorized. The only limit results from the effect of measures taken with respect to other

well-established rights. These limitations on the right to restrict free movement should

be interpreted with reference to a fundamental right, that of non-discrimination, and to

what has now become a general principle in the interpretation of fundamental rights,

that is the principle of proportionality. The many non-binding texts (‘soft law’)

mentioned in the establishment of facts ought to guide the interpretation of the

principle of non-discrimination and of the principle of proportionality in so far as they

represent general principle, if not of law, at least of ethics ‘recognized by civilized

nations’, paraphrasing article 38, paragraph 1, sub-paragraph C of the statutes of the

International Court of Justice.


792 See also: Report of the preparatory meeting for a consultation on long-term travel restrictions and HIV/AIDS, WHO,Geneva, 4-6 October 1994.

2. Conclusions554. The question of the free movement of persons living with HIV/AIDS must be

examined from the viewpoint of the principle of non-discrimination. This fundamental

principle needs to be measured with respect to the principle of proportionality: is the

damage to the fundamental principle of non-discrimination proportional to the objective

being pursued? This question contains two sub-questions:

1. Is a legitimate objective being pursued? In particular, one needs to see whether there is

another objective other than a purely economic one, in particular in the area of public

health. However, one should also bear in mind that these two objectives can be

interlinked. For example, the drawing power of a country which has advanced further

in developing AIDS care can impact both the public health budget (economic aspect)

and the health care granted to the population out of this budget (public health aspect).

2. Is the means used – viz. the infringement of freedom of movement by means of

refusals to grant access to the territory, or obligatory screening at the border, or

expulsion – proportional?

This second sub-question may itself be the subject of two tests:

a) The effectiveness test: is the method used effective in achieving the desired

objective?

b) The interchangeability test: does an equally effective method exist which would

make it possible to achieve the same objective?

555. The European Court of Justice (Luxembourg) has applied the principle of

proportionality in a case which concerned mandatory AIDS screening prior to

recruitment. On this occasion, the Court of Justice recalled that restrictions could be

made to fundamental rights, on condition that these respond effectively to objectives of

general interest and that they do not constitute, in the light of the objective being

pursued, a disproportionate and intolerable intervention which would violate the very

substance of the right which is protected (§ 13 supra) 793.

556. It is at another judicial order, that of the European Convention for the Protection of


793 ECJ, 5 October 1994, X. v. Commission of the E.C., C-404/92P, ECR, 1994, I-4737.

Human Rights and Fundamental Freedoms, that case law specifically relating to the free

movement of persons living with HIV/AIDS has been developed. The European Court of

Human Rights (Strasbourg) ruled that the expulsion by a state of a foreign national in the

terminal stage of AIDS and without means of treatment in his country of origin was

contrary to article 3 of the Convention (forbidding inhuman and degrading treatment),

even if, by virtue of a well-established principle of international law, states have the right

to control the entry, residence and expulsion of non-nationals (§ 76 supra).

557. Among all the legislations which have been examined, the number of legislations

which expressly limit the free movement of persons living with HIV/AIDS, even though

such legislation exists in many countries, are not in the majority. On the other hand,

most of the legislations which we studied made provision for restrictions in the area of

public health in general.

We need to deduce from the principle of proportionality that without legislation

which expressly permits restrictions on the free movement of persons due to AIDS,

general legislation which does not expressly make provision for restrictions linked to

AIDS may not be interpreted as authorizing them.

In this respect it can be noted that, for the WHO, including AIDS under the

concept of ‘infectious or contagious sicknesses’ which is contained in many national laws

and which permits the exclusion of travellers, causes a problem since this sickness can be

transmitted only in very specific ways, and may be avoided by any non-infected persons

by not adopting ‘high risk’ behaviour patterns 794.

3. Proposals558. The proposals which can be made with respect to the facts established and the

conclusions drawn above follow three lines, passing from the short- to the long-term.

559. In the short-term, states ought to abstain from taking in any new measure limiting

the free movement of persons living with HIV/AIDS. This ‘stand still’ position is


794 Background paper preparatory to a meeting for a consultation on long term travel restrictions and HIV/AIDS, WHO,Geneva, 4-6 October 1994. See, on genetic screening, the development of principles similar to the principle ofproportionality on the objective and the method: ‘Usually, an overall requirement is, that the advantages of ascreening programme – both for the target population as a whole and for the individual participants – prevailover the disadvantages’, S. GEVERS, ‘Population screening. The role of the law’, European Journal of HealthLaw, 1998, p. 7.

destined to avoid the introduction into the text of discriminatory restrictions which go

against the principles advanced in the declarations.

560. In the medium-term, states ought to evaluate the existing measures with reference

to the principle of proportionality. At this stage, states ought therefore to examine

whether the said measures pursue a legitimate objective. If the answer is yes, it is

important to verify whether the means used are effective (effectiveness test) and whether

there are not other means which make it possible to achieve this objective without

infringing the principle of free movement of persons, or to infringe this principle to a

lesser extent (interchangeability test). Answering these questions requires recourse to

medical and epidemiological studies, which will make it possible to adapt national and

even Community legislation as a function of the answers obtained. These answers will

also enable national or Community judges to assess the proportional nature of the

restrictions taken by states with regard to persons living with HIV/AIDS.

It should be borne in mind that the WHO examined the question of the

effectiveness of AIDS controls at borders and concluded that, from the public health

viewpoint, these measures lack foundation. If the objective pursued by states imposing

screening at borders is economic in nature, it is again important that the WHO’s

principles with regard to restrictions of a financial order be respected and that the

discrimination is not based solely on the existence of HIV/AIDS. To this extent only

could a distinction be made between short-term and long-term visits, with the latter

possibly being deemed more susceptible with regard to the principle of proportionality. In

this case, the method used – controls – could be considered as effective and difficult to

interchange in safeguarding a state’s public health system, which is considered as a

legitimate objective. It should be noted that, in order to achieve this, the legitimate

objective which is being pursued may not be purely economic, but also have a public

health aspect, and that the means used, that is controls on and restrictions to free

movement, may not strike solely persons living with HIV/AIDS. Similarly, the principle

of proportionality ought to distinguish between access to the territory and expulsion.

Expulsion represents a more serious infringement of fundamental rights than refusal of

access to a country’s territory.

561. In the long-term, limits to the freedom of movement ought to be progressively

eliminated. At least, states ought to be invited to take a position and to declare that they


will examine the proportional nature of measures taken with respect to the free

movement of persons living with HIV/AIDS.

Should legislation be promoted which bans restrictions on the free movement of

persons living with HIV/AIDS (positive actions)? Among the countries studied, few have

legislation which expressly bans AIDS controls at borders (for Europe, this is the case in

Luxembourg 795, and, outside Europe, in Bolivia 796) even if several human rights

declarations have enshrined this principle. Certain responses from the states show

hesitations resulting from the absence of positive legislation and the potential usefulness

of introducing positive legislation (see for example § 443 supra with regard to Papua New

Guinea) 797. On the other hand, introducing legislation to ban restrictions on the free

movement of persons specifically with respect to HIV/AIDS is tantamount to

stigmatizing this category of persons compared with others. In the long-term objective of

eradicating discrimination and promoting the free movement of every person, positive

action to support persons living with HIV/AIDS ought to constitute only a temporary

means, limited in time, so as to respond to the very principle of proportionality which is

defended here in the area of fundamental rights. The legitimate objective which is

pursued is non-discrimination in the area of freedom of movement. The means used is

positive discrimination through specific legislation to protect persons living with

HIV/AIDS. The means is proportional only if it is time-limited with a view to

establishing equality.

In the long-term, the extension of the more general principle of freedom of

movement within large regional groupings such as the European Union, as well as

between such groupings, should be promoted.

Specifically in the countries of the Union, the lack of uniformity which has been

observed in policies towards third countries nationals needs to be remedied, pursuant to

the texts adopted within the framework of European law.


795 See §§ 180 et seq.796 See § 394.797 In favour of positive antidiscriminatory law, see O. DE SCHUTTER, ‘Epidémie de sida et droits de l’homme’,

Revue trimestrielle des droits de l’homme, 1994, p. 86.

798 When national texts are translated, these are not official translations

Legislative textsand case law 798

Annexes

Annexe I. International and European law(1) International protection of human rights■ European Convention for the protection of human rights and fundamental

freedoms (4 November 1950)

Article 3

No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 8

1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right except

such as in accordance with the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals, or for the protection

of the rights and freedoms of others.

Article 14

The enjoyment of the rights and freedoms set forth in the 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.

■ International covenant on civil and political rights (19 December 1966)

Article 2

Each State party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in the

present Covenant, without distinction of any kind, such as race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other status.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,

222 The free movement of persons living with HIV/AIDS – Annexe I (1): Int’l and European law, Int’l protection of human rights

home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal

protection of the law. In this respect, the law shall prohibit any discrimination and guarantee

to all persons equal and effective protection against discrimination on any ground such as

race, colour, sex, language, religion, political or other opinion, national or social origin,

property, birth or other status.

■ Council of Europe Convention for the protection of people with regard to the

automated processing of personal data (28 January 1981)

Article 6

Personal data concerning health or sexual life may not be processed automatically unless

domestic law provides appropriate safeguards.

(2) Secondary community legislation (EC)■ Council Directive 64/221 of 25 February 1964 on the coordination of special

measures concerning the movement and residence of foreign nationals which are

justified or grants of public policy, public security or public health.

Article 4

1. The only diseases or disabilities justifying refusal of entry into a territory or refusal to

issue a first residence permit shall be those listed in the Annexe to this Directive.

2. Diseases or disabilities justifying refusal of entry into a territory or refusal to issue a first

residence permit shall be those listed in the Annexe to this Directive.

3. Member States shall not introduce new provisions or practices which are more restrictive

than those in force at the date of notification of this Directive.

Annexe:

1. Diseases subject to quarantine listed in International Health Regulation No. 2 of the

World Health Organization of 25 May 1951;

2. Tuberculosis of the respiratory system in an active state or showing a tendency to develop;

3. Syphilis;

4. Other infectious diseases or contagious parasitic diseases if they are the subject of

provisions for the protection of nationals of the host country.

The free movement of persons living with HIV/AIDS – Annexe I (2): Int’l and European law, Secondary community legislation 223

(3) Non-binding community texts■ Resolution of the Council and of the representatives of the Governments of the

Member States, meeting within the Council, of 29 May 1986 concerning the

adoption of a European emergency health card 799

The Council and the representatives of the governments of Member States consider that, in

order further to protect the health of European citizens and to enhance their freedom of

movement it is desirable to provide for means whereby, in an emergency, their pre-existing or

present health problems can be identified. To this end, an appropriate means appears to be a

European emergency health card, clearly and succinctly setting out certain vital information.

■ Communication from the Commission of 11 February 1987 on the fight

against AIDS 800

The Commission believes that compulsory screening of certain groups should be rejected

on the basis of effectiveness, logistical problems, cost and consideration of civil liberties.

It calls for joint examination, with Member States’ representatives, of the possible

relevance of certain measures which could limit the freedom of movement of persons,

such as notification of cases of AIDS or systematic screening, in order to avoid the

development of contradictory national practices.

■ Conclusions of the Council of 15 May 1987 concerning AIDS 801

The Council and the representatives of the Governments of the Member States consider

that AIDS represents a ‘priority international cause in the field of public health’. They

confirm their commitment to full respect of the principle of freedom of movement of

persons and consider it necessary, by means of reciprocal information and appropriate

coordination, to prevent contradictory national policies from being developed in regard

to third-country nationals. The Council and the representatives of the Governments of

the Member States stress the ineffectiveness, in terms of prevention, of any policy of

systematic and compulsory screening, in particular during health checks at frontiers. They

also decide to introduce arrangements for systematically informing international

travellers about AIDS. The ad hoc working party is instructed to organize information on

technical, administrative and legal measures envisaged or adopted by the Member States.

224 The free movement of persons living with HIV/AIDS – Annexe I(3): Int’l and European law, Non-binding community texts

799 OJ, C 184, 23 July 1986, p. 4.800 COM (87) 63 Final, 11 February 1987.801 OJ, C 178, 7 July 1987, p. 1.

■ Conclusions of the Council of 31 May 1988 concerning AIDS 802

The Council and the representatives of the governments of the Member States note that

all the Member States are pursuing homogenous policies in the fight against AIDS, in

accordance with the common approach outlined in their conclusions of 15 May 1987.

They note in particular that all Member States are ensuring the freedom of movement of

persons. The commitment to certain principles is reaffirmed, in particular the

ineffectiveness of systematic and compulsory screening, the rejection of any

discrimination against or stigmatisation of persons affected by AIDS, and the giving of

absolute priority to prevention through health education and information.

■ Communication of the Commission of 17 May 1988 on Community action

against AIDS in 1987 803

The Commission records that, in its communication of 11 February 1987, it stressed the

need, among other things, for joint examination of the possible relevance of certain

measures relating, in one way or another, to migration policy, and the free movement of

persons. It notes that the work has been held up for various reasons. It proposes setting up

a simple and fast system of exchange of information on the public and private measures

adopted or envisaged in the Member States. With respect to systematic screening at

frontiers, the Commission reminds that it has systematically expressed its commitment to

respecting the principle of freedom of movement and it has stressed the need to prevent

contradictory national practices developing.

■ Resolution of the European Parliament of 30 March 1989 on the fight

against AIDS 804

Parliament judges that it is necessary for a Community system to be established for regular

and rapid exchanges of information on activities, measures and initiatives associated with

the fight against AIDS between Member States’ governments and between regional

services responsible for preventive measures, and for the care and supervision of patients.

The purpose of such exchanges should be to assist the Member States in the fight against

AIDS, to help to safeguard freedom of movement and to prevent the development of

contradictory or discriminatory national policy for citizens of third countries. Parliament

The free movement of persons living with HIV/AIDS – Annexe I(3): Int’l and European law, Non-binding community texts 225

802 OJ, C 197, 27 July 1988, p. 8.803 COM (88) 268 Final, 17 May 1988, p. 2.804 OJ, C 158, 26 June 1989, p. 477.

is of the opinion that systematic and compulsory screening is ineffective from the point of

view of prevention. It asks Member States to refrain from HIV testing at borders and the

expulsion or isolation of people from outside the Community because of HIV or AIDS. It

requests the Commission to create a central data bank to record cases of discrimination.

■ Resolution of the Council and the Ministers for Health of the Member States of

22 December 1989 on the fight against AIDS 805

In the fight against AIDS, top priority should, alongside research, continue to be given to

prevention by means of health information and health education. On the basis of the present

state of knowledge, no public health reason justifies the systematic and compulsory screening

of individuals. The free movement of persons is and must continue to be guaranteed.

■ Decision of the Council and the Ministers for Health of the Member States,

meeting within the Council on 4 June 1991, adopting a plan of action in the

framework of the 1991-1993 ‘Europe against AIDS’ programme 806

The plan of action makes provision for, in particular, informing and increasing the

awareness of the public and of certain target groups as well as measures to combat

discrimination against HIV-infected persons.

■ Resolution of the Council and the Ministers for Health of the Member States,

meeting within the Council of 13 November 1992 on the monitoring and

surveillance of communicable diseases 807

The Council considers that the mobility of people as a result of the development of the

internal market increases the importance of more comparable and more accessible data

and of timely exchanges of information collected by the Member States in order to

monitor outbreaks of communicable diseases. It invites the Commission to produce

reports on transnational surveillance networks and to submit proposals aimed at

improving and extending such networks.


805 OJ, C 10, 16 January 1990, p. 3.806 OJ, L 175, 4 July 1991, p. 26.807 OJ, C 326, 11 December 1992, p. 1.

■ Report from the Commission on the implementation of the plan of action in

1991-1992 808

With regard to raising awareness on the problems of AIDS, the Commission considers

that Community action focused at specific target groups, in particular those crossing

national borders and migrants, are easy to implement and can have particularly useful

value. The Commission points out that projects have already been financed in these areas

and will be developed further.

■ Proposal for a decision of the Council and the Ministers of Health of the

Member States, meeting within the Council, concerning the extension to the

end of 1994 of the 1991-1993 plan of action in the framework of the ‘Europe

against AIDS’ programme 809

The Council stresses that increasing tourism and travel within the Community and to

and from the Community and to other states bring with them greater possibilities for the

spread of this disease. It considers that attempting to combat this by limiting free

movement between states would have unacceptable consequences and would be

ineffective. However, the Council believes that providing information and running

specific campaigns can have a considerable impact and that such activities can often most

easily and effectively be carried out at Community level. The 1994 plan of action

includes in particular: studies of the information campaigns for the general public and

target sections of the population, including migrants; studies and exchanges of

information and experience on problems related to tourism, people travelling within the

Community and to and from other countries, and combating discrimination against

people with HIV and AIDS.

■ Communication from the Commission concerning a Community action

programme on the prevention of AIDS and certain other communicable diseases

in the context of the framework for action in the field of public health 810

Discrimination against people with HIV and AIDS is condemned. The Commission


808 COM (93) 42 Final, 10 March 1993.809 COM (93) 453 Final, 29 September 1993.810 COM (94) 413 Final, 9 November 1994, p. 5.

observes that when such discrimination is combined with prejudice against people in

marginalized groups and minorities, such as homosexuals and migrants, severe social

tensions can result. Among forms of discrimination, the Commission alludes to obligatory

screening for immigrants. The actions to be undertaken could include analysis of actual

and potential discriminatory situations in the Community, such as obligatory screening at

frontiers. On the other hand, the Commission points to a growing and increasing need

for information activities to respond to the growing mobility of the Community

population and proposes specific measures to be targeted at tourists, migrants, refugees

and occupational travellers.

■ Proposal for a European Parliament and Council decision adopting a programme

of Community action on the prevention of AIDS and certain other communicable

diseases within the framework for action in the field of public health 811

The programme envisages examination and exchange of information on problems linked

to risk situations. According to the problem, these include migrant populations and cross-

border areas.

■ Commission report on the implementation of the ‘Europe against AIDS’ action

plan in 1993 812

Activities are mentioned with regard to migrants (support for the establishment of an

information centre for certain immigrant communities, etc.). Mention is made of

Commission financing of a feasibility study concerning the establishment of coordinated,

Community-wide information and prevention campaigns for international tourists

travelling within the European Community.

■ Commission report on the implementation of the ‘Europe against AIDS’ action

in 1994 813

With regard to the fight against discrimination, the Commission points first of all to an

analysis of the status of implementation of the Council Resolution of 22 December 1989.

It also mentions an analysis carried out on the possibilities of drawing up a European code

relating to discrimination against those afflicted by HIV/AIDS. Questions relating to the


811 COM (94) 413 Final, 9 November 1994, p. 39.812 COM (94) 525 Final, 25 November 1994, p. 2.813 COM (95) 521 Final, 7 November 1995, p. 2.

free movement of persons will be dealt with in the context of this project. The conclusions

of the report on the implementation of the plan stress in particular that increased tourism

has given rise to a sustained prevention, information and assistance campaign.

■ Commission communication of 7 March 1996 concerning communicable disease

surveillance networks in the European Community 814

The Commission observes that the more people travel about, the greater the risks of the

propagation of infectious diseases (the Commission specifically quotes AIDS as an

example). From this it draws as a conclusion the necessity to agree on measures for

communicable disease surveillance.

■ Proposal for a European Parliament and Council Decision of 7 March 1996

creating a network for the epidemiological surveillance and control of

communicable diseases in the European Community 815

The proposal seeks to establish a system of close cooperation between Member States in

the field of surveillance, with a view to controlling a certain number of serious

communicable diseases. The Decision contains specific provisions aimed at ensuring

cohesion with other relevant Community policies, including freedom of movement.

■ Decision N° 647/96/EC of the European Parliament and of the Council of

29 March 1996 adopting a programme of Community action on the prevention

of AIDS and certain other communicable diseases within the framework for

action in the field of public health (1996 to 2000) 816

A programme of community action on the prevention of AIDS and certain other

communicable diseases shall be adopted for the period 1 January 1996 to 31 December

2000. The following actions are mentioned: the coordination of studies and information

on the problems and situations of persons placed in particular situations (among others

travel); the encouragement of initiatives intended to inform and educate migrants, taking

particular account of cultural and linguistic differences, examination of actual or

potential discriminatory situations.


814 COM (96) 78 Final, 7 March 1996, p. 2.815 COM (96) 78 Final, 7 March 1996, p. 45.816 JO, L 95, 16 April 1996, 16.

230 The free movement of persons living with HIV/AIDS – Annexe II(1): European states, National texts

Annexe II. European Union Member States(1) National texts

1. (A) AustriaNo testing at the borders.

Public health is dealt with in the decisions concerning the granting of visas

(paragraph 7 of the law of 17 June 1995 on foreign citizens 817). The law states that entry

can be refused if the applicant represents a threat to public policy or security but it does

not make express mention of public health.

■ Osterreichisches Fremdengesetz, 17 June 1995

Article 7 (3)

In exercising the discretionary power granted under paragraph (1) for assessing the reason

for the intended residence of the visa applicant, the authority shall give due consideration not

only to his personal circumstances, in particular his family ties, his financial situation and

the duration of his residence to date, but also to the public interests, in particular security

policing and economic aspects, the state of the labour market and public health concerns.

Article 18 (1)

A residence ban shall be imposed on the alien if on the basis of certain facts it can justifiably

be assumed that his residence constitutes a threat to public policy (öffentliche Ruhe) or

public safety.

2. (B) BelgiumThe law of 15 December 1980 818 stipulates that entry and stay may be refused to Union

citizens for reasons of public health (article 43).

The same legislation states that a decision may be taken to expel the foreigner if

there is a threat to public health (article 7).

817 Österreichisches Fremdengesetz, modified on 17 June 1995. A new modification of this law is planned for early1998.

818 Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers,M.B., 31 XII 1980, modified on several occasions of which the last was 15 July 1996.

The free movement of persons living with HIV/AIDS – Annexe II(1): European states, National texts 231

■ Law of 15 December 1980 on access to the territory, stay, residence and

expulsion of foreigners

Article 3

Apart from derogations applied by an international treaty or by the law, a foreigner may be

refused entry by the border control authorities if he corresponds to one of the following

cases:

(...)

5) if he is listed as not to be admitted to the States signatories to the Convention for the

Application of the Schengen Agreement, signed on 19 June 1990, either because his

presence constitutes a danger for public policy or national security, or because he has been

the object of an expulsion order which has neither been postponed nor suspended, containing

prohibition of entry, based on non-respect of the national rules concerning the entry or the

stay of foreigners;

7° if it is considered by the Minister or his delegate that he could trouble public peace, public

policy or national security.

Article 7

Without prejudice to more favourable dispositions contained in an international treaty, the

Minister or his delegate may give the order to leave the territory before a specific date to any

foreigner who is neither authorized nor admitted to stay more than three months or to take

up residence in the Kingdom (...) if he suffers from one of the illnesses or infirmities listed in

the annexe to the present law.

Article 43

Entry and stay may be refused to Union citizens only for reasons of public policy, public

security or public health (...). Only those illnesses and infirmities mentioned on the list

annexed to the present law may justify refusal of entry to the territory or of granting an

initial residence permit. No illness or infirmity can justify the renewal of a residence permit

or expulsion from the territory, once such a permit has already been delivered.

Annexe

A. Illnesses that may endanger public health:

1. quarantine illnesses mentioned in the international health regulation n° 2 of 25 May

1951 of the World Health Organization;

2. active or progressive tuberculosis of the respiratory system;

3. syphilis;


4. other infectious or parasitic contagious illnesses inasmuch as they constitute, in the host

country, the object of provisions for the protection of national citizens.

B. Illnesses and infirmities that may endanger public policy or public security:

1. drug addiction;

2. major psychic or mental alterations; manifest states of agitation psychosis, delirium or

hallucination and confusion psychosis.

3. (D) GermanyThe law on foreign citizens of 9 July 1990 819 does not require a medical examination on

entry. paragraph 46 states that expulsion may occur for reasons of public health.

■ Ausländergesetz of 9 July 1990

Article 46, 5°

A person may be deported, in particular if he endangers public health through his conduct.

■ Bavaria

Notice n° 1 A 2 – 2081.10 of 19 May 1987 of the Ministry of the Interior of

Bavaria: Legislation concerning foreigners; Medical examination as a condition for

delivering a residence permit 820

The present notice modifies anew a notice dated 19 June 1979 by introducing as a condition

for delivery of a residence permit the obligation to present to the authorities in charge of

foreigners a medical certificate attesting to the good state of health of the applicant, containing

especially the result of a test for detection of HIV infection and mentioning the laboratory

having performed the test. This obligation does not apply to foreigners whose stay abroad has

been only temporary nor to citizens of the Member States of the European Communities or

of the following countries: Andorra, Austria, Finland, Iceland, Liechtenstein, Malta,

Monaco, Norway, San Marino, the Vatican, Sweden and Switzerland.

819 Ausländergesetz of 9 July 1990, BGBl. I, p. 1354, modified on 28 October 1994, BGBl. I, p. 3186.820 Ministerialamtsblatt der Bayerischen Inneren Verwaltung, 25 May 1987, vol. 39, no. 10, p. 256 and International

Digest of Health Legislation, WHO, (Geneva, 1987), 38 (3), p. 510.


4. (DK) DenmarkThe Danish law on foreign citizens 821 states that entry may be refused for reasons of

public health (article 28).

Article 10 of this law states that the right of residence may be delivered only if

particular reasons justify this decision when because of a contagious illness the foreigner

must be considered to be dangerous for those in contact with him.

The law specifies that decisions of expulsion must take into account the state of

health of the person concerned (article 26).

■ Aliens Act no. 894 (Udlændingeloven), 27 October 1994

Article 10

(...) a residence permit may be issued only where particular reasons make it appropriate if

because of a communicable disease (...) the alien must be deemed to represent a threat or

cause substantial inconvenience to his surroundings.

Article 26

In deciding on expulsion, regard shall be had not only to the alien’s ties with the Danish

community, including the duration of his residence in Denmark, but also to the question

whether expulsion must be assumed to be particularly burdensome on him, in particular

because of (…) the alien’s age, health, and other personal circumstances (…).

Article 28

An alien not issued with a residence permit or a national of a Nordic country not

permanently resident in Denmark may (…) be denied entry on arrival if (…) other

reasons of public policy, security, or health indicate that the alien should not be allowed to

stay in Denmark.

5. (E) SpainThe law of 1 July 1985 822 organizes medical examinations at the frontiers (article 11).

The executive order of 23 February 1996 823 provides for the possibility of closing the

821 Consolidated Act no. 894 of 27 October 1994, udlændingeloven, j.nr. 1994-3701-649, modified on 14 June1995, on 24 April 1996, on 22 May 1996 and on 11 December 1996, Consolidated by ministerial decree, no.51 of 22 January 1997 (Indenrigsministeriet lov bekendt gorelse). The 1994 article numbers are used here.

822 Ley orgánica 7/1985, de 1 de julio, sobre derechos y libertades de los extranjeros en España, BOE, 3 júlio 1985,20825.

823 Reglamento de ejecución de la ley orgánica 7/1985 de 1 de julio sobre derechos y libertades de los extranjerosen España, BOE, 23 febrero 1996, 6951.


frontiers in the case of a threat to public health (article 18).

The same order provides for delivery of a medical certificate in order to obtain a

residence visa or a residence or work permit (articles 27, 56 and 85).

The real decreto 766/1992 of 26 June on the entry and stay in Spain of Union citizens 824

states that refusal of entry and stay as well as expulsion may be decided for reasons of

public health (article 15).

■ Ley orgánica 7/1985 of 1 July 1985, sobre derechos y libertades de los

extranjeros en España (on the rights and liberties of foreigners in Spain)

Article 11

At the entry points they must undergo the medical examinations and the measures of control

demanded by the Spanish health services for reasons of public health in the form of and

following the guarantees established by those international treaties of which Spain is a party,

and according to the dispositions in force.

■ Reglamento de ejecución de la ley orgánica 7/1985

Article 18

Closure, whether temporary or sine die, of the entry and exit points into and out of Spain

may be decided by the government whenever circumstances demand this. In practical terms

(...) following a proposal from the Minister of Justice and of the Interior preceded by a

report in favour of this measure from the Minister of Health and Consumption, in case of

epidemic (...).

Article 27

Residence visa applicants must present (...) a medical certificate in conformity with the

dispositions contained in article 37 of the present order.

Article 32

The visa will not be granted to a foreigner whose coming to Spain represents a danger for

public policy, national security, public health (...).

824 Reál decreto 737/1995 de 5 de mayo por el que se modifica el Reál Decreto 766/1992 de 26 de júnio sobreentrada y permanéncia en España de nacionales de Estados miembros de las Comunidades Europeas, BOE, 5junio 1995, 16547.


Article 37

When the Ministers of Justice and of the Interior so decide, in agreement with the Minister

of Health and of Consumption, all persons wishing to enter the Spanish territory must

present at the frontier points a health certificate delivered in their country of origin by the

medical services designated by the Spanish diplomatic or consular mission, or else must

undergo at their arrival a medical examination performed by the competent medical services

so as to prove that they are not suffering from the following disorders:

a) quarantine illnesses defined as such according to the International Health Regulations

adopted by the 22nd World Health Assembly in 1969, third edition, 1983, of the World

Health Organization;

b) drug addiction, major psychic disorders, manifest states of psychopathic illness

accompanied by agitation, delirium, hallucinations or confusion psychosis, when these

disorders endanger public policy or public security according to the dispositions of the

legislation in force;

c) infectious or parasitic illnesses designated by the Minister of Health and of Consumption.

Article 56

The application for a residence permit (...) will be accompanied by the following

documents: (...) an official medical certificate, according to article 37 of this order, if the

applicant had not supplied this for the delivery of the visa.

■ Reál decreto 766/1992 (modified by the Reál decreto 737/1995) sobre entrada y

permanéncia en España de nacionales de Estados miembros de las Comunidades

Europeas (Royal decree on the entry and stay in Spain of citizens of Member States

of the European Communities)

Article 15

When reasons of public policy, public security or public health require, the following

measures may be applied:

a) refusal of entry to Spain (...);

b) refusal of delivery or renewal of permits;

c) ordering expulsion from the Spanish territory;

(...)

Only the following illnesses and infirmities may justify adoption of one of the measures

provided for in paragraph 1 of the present article:


a) quarantine illnesses mentioned in the International Health Regulations n° 2 of 25 May


b) drug addiction, when this constitutes a danger for public policy or public security in

conformity with the legislation in force;

c) other infectious or parasitic contagious illnesses inasmuch as they are the object of

dispositions of protection concerning Spanish citizens.

If these illnesses or infirmities have been contracted subsequent to the delivery of an initial

residence permit they may not justify a refusal to renew a permit nor expulsion from the

Spanish territory.

6. (F) FranceThe Order of 2 November 1945 does not provide for a refusal of entry to the territory for

reasons of health 825.

The decree n° 94/211 of 11 March 1994 826 states that the stay may be refused for

reasons of public health.

Foreigners who are not Union citizens must undergo a medical examination

according to the dispositions of the order of 7 November 1994 827.

An HIV positive result not accompanied by clinical signs does not constitute a

motive for refusal of the right of residence.

■ Order of 2 November 1945 relating to the conditions of entry and residence of

foreigners in France, as modified

Article 5

(...) Access to the French territory may be refused to any foreigner whose presence could

constitute a threat for public policy or who is concerned by an order banning him from the

territory or an expulsion order.

825 Ordonnance du 2 novembre 1945 relative aux conditions d’entrée et de séjour des étrangers en France,modified in particular by the law of 27 December 1994, Journal Officiel, 28 December 1994, 18536, Law no.97-396 of 24 April 1997, Journal Officiel, 25 June 1997, 8651 and the Law no. 98-349 of 11 May 1998, JournalOfficiel, 12 May 1998, 7087.

826 Décret n° 94-211 du 11 mars 1994 réglementant les conditions d’entrée et de séjour en France desressortissants des États membres de la Communauté européenne bénéficiaires de la libre circulation despersonnes, Journal Officiel, 13 March 1994.

827 Arrêté du 7 novembre 1994 relatif au contrôle sanitaire des étrangers autorisés à séjourner en France, JournalOfficiel, 9 November 1994.


■ Decree 94/221 of 11 March 1994 regulating the conditions for entry and stay in

France of citizens of the Member States of the European Community benefitting

from the free movement of persons

Article 6

(...) The resident’s card may be refused for reasons of public policy if it has been shown that

the applicant suffers from one of the illnesses or infirmities capable of endangering public

policy or public security and mentioned in the list given in annexe to the present decree.

Annexe

Illnesses and infirmities capable of endangering public order or public security:

1. drug addiction;

2. major psychic and mental troubles; manifest states of agitation psychosis, delirium or

hallucination psychosis or confusion psychosis.

■ Order of 7 November 1994 concerning health control of foreigners authorized to

stay in France

Article 4

A foreigner does not fulfil the health conditions if he is suffering from one of the illnesses

mentioned in section V of the international health regulations published by the above-

mentioned decree of 24 January 1989 or from progressive tuberculosis of the respiratory

system or from addiction to substances or plants classified as narcotics or from mental

troubles of a kind capable of disturbing public policy or the safety of persons.

■ Circular letter DGS/1C n° 784 of 8 December 1987 concerning the health

inspection of foreigners wishing to stay in France

(...) only the presence of clinical signs of AIDS or the request of the person concerned may

lead to performing clinical research for HIV antibodies; the existence of an HIV positive

result in the absence of clinical signs must not constitute grounds for refusal of authorization

to stay in France.

■ Circular letter NOR/INT/D/97/00104/C of 24 June 1997 concerning the re-

examination of certain categories of foreigners whose official papers are not in order 828

Point 1.7. Ill foreigners.

In application of article 25, 8° of the order of 2 November 1945, ‘a foreigner usually

828 Journal Officiel, 26 June 1997, 9819. Confirmed by law of 11 May 1998; supra, note 825.


residing in France who suffers from a serious illness requiring medical treatment and whose

departure could entail exceptionally grave consequences for him, provided that he cannot in

fact receive appropriate treatment in the country towards which he is expelled...’.

Foreigners who fulfil the conditions imposed by the law normally obtain a provisional

renewable residence authorization for three months or else they are placed under house

arrest if they are under an expulsion order. From now on, if the report established by the

Inspection Medical Officer of the Département mentions the need for long term medical

treatment for foreigners in this situation, you will deliver a temporary resident’s card unless

public policy is threatened.

This card will bear the mention ‘salaried employee’ if the foreigner requests this and if the

Inspection Medical Officer of the Département considers that the state of health of the

person in question is compatible with a professional activity.

7. (FIN) FinlandThe Finnish Aliens’ Act of 22 February 1991829 does not provide for refusal of entry for

reasons of public health.

In the context of foreigners benefiting from a right of residence on the basis of

European law, article 40 provides for expulsion in the case of a threat to public health.

■ Ulkomaalaisloki (Aliens Act) 378/91 of 22 February 1991, after modification

Article 40

(...) An alien who has the right of residence based on the Agreement on the European

Economic Area may be deported only on grounds of public policy, public security and public

health.

8. (GR) GreeceThe law 1975/91 830 on foreigners authorizes refusal of entry in case of threat to public

health (article 6, 5°).

Public health is taken into account in the process of granting a short-term residence

permit (article 12).

829 Aliens Act 378/91, modified 3 February 1995.830 Law 1975/91 of 21 November 1991 concerning acces to the territoy, exit, residence, employment, and the expulsion

of foreigners and concerning the procedure of recognition of refugee status and other disposition, Official Journal of theHellenic Republic, no 184/1991, 4 december 1991.


It is also taken into account in permission for renewal of the permit for studies

(article 15).

Revocation of the authorization of entry for reasons of work may be based on reasons

of public health (article 22-4).

Expulsion may be decided on in the case of threat for reasons of health (article 27, 1°).

■ Law 1975/91 of 21 November 1991 concerning access to the territory, exit,

residence, employment, and the expulsion of foreigners and concerning the

procedure for recognition of refugee status and other dispositions

Article 6, 5°

The entry of an alien in Greek territory is prohibited if (…) he suffers from a disease which,

by virtue of a decision of the Minister competent on matters of health, has been judged, in

accordance with international standards, and the World Health Organization, as capable of

constituting a danger for public health.

Article 12

For the granting or not of this [short-term] permit, consideration is given to (…) public

health and the social or public interest in general.

Article 15

(…) For granting the renewal of the residence permit for studies, consideration is given to

medical and pharmaceutical attendance expenditures and the non-existence of serious

reasons relating to public security and health.

Article 22

(…) The preliminary approval (of the entry of the foreign for work reasons) (…) can be

revoked or suspended decisively for reasons of public policy, public security, public health or

the protection of public interest.

Article 27

The administrative deportation of an alien, with the reservation of the international

obligations of our country, is feasible if (…) his presence on Greek territory is judged to be

dangerous for the public policy or security of the country or public health.


9. (I) ItalyForeigners who are not citizens of the European Union must conform to the health

conditions in order to enter the territory (article 3 of the law of 28 February 1990) 831.

The right to stay in Italy can be refused for reasons of public health (article 4, 12°).

■ Legge (law) n° 39/90 of 28 February 1990 conversione in legge con modificazioni

del decreto-legge 30 dicembre 1989 n° 416 recante norme urgenti in materia di

asilo politico, di ingresso e soggiorno dei cittadini extracomunitari e di

regolarizzazione dei cittadini extracomunitari ed apolidi già presenti nel territorio

dello stato (transformation into a law with modifications of the legal decree of 30

December 1989 no. 416 providing urgent norms concerning political asylum, entry

and stay of non-European citizens and regularization of non-European citizens and

stateless persons who are already present on the territory of the state), known as

‘legge Martelli’.

Article 3

A foreigner may enter the territory of the State if he presents himself at the frontier control

with a valid passport or an equivalent document recognized by the Italian authorities (...)

and which is in conformity with the dispositions in force as concerns administration, health

and social security (...).

Article 4, 12°

The residence permit may be refused if the conditions and dispositions contained in the law

are not satisfied and (...) motivated for reasons concerning State security and public policy

or public health.

10. (IRL) IrelandThe basic legislation is the Aliens Act 1935, which has been completed by

subsequent texts.

Entry to the territory can be refused for reasons involving public health (article 3,

Aliens Amendment Order 1975 832).

831 Legge 28 febbraio 1990, n° 39, conversione in legge con modificazioni del decreto-legge 30 dicembre 1989 n°416 recante norme urgenti in materia di asilo politico, di ingreso e soggiorno dei cittadini extracomunitari e diregolarizzazione dei cittadini extracomunitari ed apolidi gia presenti nel territorio dello stato, Gazzeta ufficialedella republica Italiana, 28 february 1990, serie generale, n° 49, as modified on 9 December 1996, Gazzettaufficiale della republica italiana, 9 decembre 1996.

832 Statutory instruments, SI N° 128 of 1975.


For European citizens, refusal of entry and stay or an expulsion may occur if

the foreigner has certain illnesses (European Communities Aliens Regulation 1977,

article 4, 12, 14 833).

■ Aliens (Amendment) Order 1975

Article 3

An immigration officer may refuse leave to land to an alien (…) where the immigration

officer is satisfied that the alien (…) is suffering from a disease or disability specified in the

Fifth Schedule to this Order.

Schedule 5

1) diseases subject to the International Health Regulations for the time being adopted by the

World Health Assembly of the World Health Organisation;

2) tuberculosis of the respiratory system in an active state or showing a tendency to develop;

3) syphilis;

4) other infectious or contagious parasitic diseases in respect of which special provisions are

in operation to prevent the spread of such diseases from abroad;

5) drug addiction;

6) profound mental disturbance; manifest symptoms of psychotic disturbance with

agitation, delirium, hallucinations or confusion.

■ European Communities (Aliens) Regulations 1977

Article 4

The person to whom these Regulations apply (…) may not be refused leave to land

unless he is suffering from a disease or disability specified in the Second Schedule to these

Regulations.

Article 12

(...) The only disease or disability in respect of which a decision to refuse to issue a first

residence permit may be based, or in respect of which a person may be required to leave the

State, shall be one specified in the Second Schedule to these Regulations.

833 Statutory Instruments, Sl N° 393 of 1977.


Article 14

A person (...) may be required by the Minister to leave the State (…) where the person has

not been given a first residence permit [and is] suffering from a disease or disability specified

in the Second Schedule to these Regulations..

Second schedule

A. Diseases which might endanger public health:

1) diseases subject to the International Health Regulations for the time being adopted by the

World Health Assembly of the World Health Organization;

2) tuberculosis of the respiratory system in an active state or showing a tendency to develop;

3) syphilis;

4) other infectious or contagious parasitic diseases in respect of which special provisions are

in operation to prevent the spread of such diseases from abroad.

B. Diseases and disabilities which might justify decisions on grounds of public policy or

which might endanger public security:

1) drug addiction;

2) profound mental disturbance, manifest conditions of psychotic disturbance with agitation,

delirium, hallucinations or confusion.

11. (L) LuxembourgOn the basis of the law of 28 March 1972 834, entry and stay may be refused for reasons of

public health. Public health may also be invoked to justify expulsion. The ruling on the

medical control excludes HIV/AIDS from the latter 835.

■ Law of 28 March 1972 concerning the entry and residence of foreigners, the

medical control of foreigners and the employment of foreign workers

Article 2

Entry and stay in the Grand Duchy may be refused to a foreigner (...) if he might trouble

public security, peace, order or health.

834 Loi du 28 mars concernant l’entrée et le séjour des étrangers, le contrôle médical des étrangers et l’emploi de lamain-d’œuvre étrangère, Mém. A 1972, p. 818 modified by the laws of 16 April 1975, p. 621; of 29 July 1977,Mém. 1977, p. 1345; of 8 April 1993, Mém. A 1993, p. 582; of 17 June 1994, Mém. A 1994, p. 1023; of 18August 1995, Mém. A 1995, p. 1908.

835 Règlement grand-ducal du 17 octobre 1995 relatif au contrôle médical des étrangers, Mém. A 1995, p. 2055.


Article 6

The foreigner’s identity card may be confiscated and its renewal refused if the foreigner (…)

3) might endanger public health.

Article 9

Even if they have been authorized to reside in the Grand Duchy, insofar as their extradition

is not requested, foreigners may be expelled from the Grand Duchy if (…) 1) they come

into the categories mentioned in article 6 of the present law.

Article 12

Foreigners who are not authorized to reside in the territory may be expelled by the public

forces with no form of procedure other than simple observation of the fact in the form of a

police report to be addressed to the Minister of Justice (...).

3) who have been refused entry to the country according to article 2 of the present law

(...).

5) who, according to the hypotheses mentioned in article 2, paragraph 2 of the Application

Convention of the Schengen Agreement (...) may trouble public security, peace or order.

Article 21

With the exception of citizens of Member States of the European Union, but without

prejudice to the dispositions of the paragraph 2 of the present article, all foreigners entering

the Grand Duchy and all foreigners wishing to reside therein may be obliged to undergo a

medical examination.

If during a frontier control the agents responsible for the control of persons are in doubt

concerning the state of health of a foreigner, they may call a doctor and demand a medical

examination of the person concerned.

■ Grand ducal Regulation of 17 October 1995 relating to the medical examination

of foreigners

Article 5

The medical examination, which must obligatorily include an X-ray of the lungs, shall

concern the following illnesses and infirmities: (...)

4) other infectious or parasitic contagious illnesses mentioned in protective provisions

concerning national citizens, with the exception of HIV/AIDS .


12. (NL) NetherlandsEntry and stay may be refused to Union citizens suffering from one of the illnesses mentioned

in the annexe to the ruling (articles 91 and 97 of the decree of 19 September 1966 836).

Expulsion of a foreigner may not take place if it is not justified taking into account

the state of his health (article 25 of the law on foreigners of 13 January 1965 837).

■ Vreemdelingenwet (Alien’s Act) of 13 January 1965, as amended

Article 25

An alien shall not be removed from the Netherlands if this is regarded as unreasonable in

view of his state of health or that of any of the members of his family.

■ Vreemdelingenbesluit (Alien’s Decree) of 19 September 1966, as amended

Article 91

Access may be refused to a foreigner who is a citizen of a member State of the European

Economic Community (...) only if he is suffering from one of the illnesses mentioned

in the schedule.

Article 97

If the foreigner falls into one of the categories of resident permits mentioned in article 94, an

authorization to stay may be refused only if he is suffering from one of the illnesses

mentioned in the schedule.

Schedule

A. Illnesses that may endanger public health.

1. quarantine illnesses mentioned in the international health regulation n° 2 of 25 May



3. syphilis;

4. other infectious or parasitic contagious illness insofar as they are the object, in the host

country, of dispositions of protection concerning national citizens.

836 Vreemdelingenbesluit van 19 September 1966, Staatsblad, 387, amended on 10 July 1995, Staatsblad (O.J.), 356.837 Vreemdelingenwet, 13 Januari 1965, Staatsblad, 40 amended on 2 February 1995, Staatsblad (O.J.), 43.


B. Illnesses and infirmities that can endanger public order or security:

1. drug addiction;

2. major psychic and mental derangements; manifest states of agitation psychosis, delirium

or hallucinatory psychosis and confusion psychosis.

13. (P) PortugalThe decree-law 59/93 of 3 March 1993 838 does not mention the absence of danger for

public health in the general conditions for access.

Entry and residence may be refused Union citizens suffering from certain illnesses

(decreto-lei n° 60/93 of 3 March 1993, article 12 839).

For citizens of other countries, a medical certificate attesting that the person is

suffering from no infectious or contagious illness is necessary in order to obtain a visa for

residence, work or studies (decreto regulamentar n° 43/93, article 4 840).

■ Decreto-lei 59/93 of 3 March 1993 on the access, stay, exit and expulsion of

foreigners on the national territory

Article 10

Entry on national territory will be prohibited to foreigners (…) who constitute a menace for

public policy, national security or international relations (…)

■ Decreto-lei 60/93 of 3 March 1993

Article 12

(...) 2. Refusal of entry to the national territory or of delivery of an initial residence permit

may be justified by one of the following illnesses:

A. Illnesses that may endanger public health:

1. quarantine illnesses mentioned in the international health regulation no. 2 of 25 May



3. syphilis;

4. other infectious or parasitic contagious illnesses insofar as in the host country they are the

838 Decreto-lei n° 59/93 de 3 de Marco, Diario Da Republica, I Serie A, 3-3-1993, 52.839 Decreto-lei n° 60/93 de 3 de Marco, Diario Da Republica, I Serie A, 3-3-1993, 52.840 Decreto regulamentar n° 43/93 de 15 de dezembro, Diario Da Republica, I Serie B, 15-12-1993, 291.


object of dispositions of protection concerning national citizens.

B. Illnesses and infirmities that may endanger public policy or security:

1. drug addiction;

2. major psychic and mental disorders; manifest states of agitation psychosis, delirium or

hallucinatory psychosis and confusion psychosis;

The appearance of one of the illnesses listed in the foregoing number after delivery of the

initial residence permit cannot justify refusal to renew this permit nor expulsion from the

national territory.

■ Decreto regulamentar 43/93 of 15 December 1993

Article 4

All visa applications must be accompanied by the following documents: (...) medical

certificate for applications for residence, work or study visas.

14. (S) SwedenThe general legislation concerning the access and stay of foreigners are the laws 841 and

the ordinance 842 of 1989, as amended.

Refusal of entry or stay and expulsion for reasons of public health are not provided

for in the Aliens Act.

15. (UK) United KingdomA medical examination is required by the legislation on foreigners 843 for persons entering

the territory.

Expulsion from the United Kingdom may occur in case of necessity for the public good.

Refusal of entry and expulsion of Union citizens may occur for reasons of public health.

Instructions have been issued concerning the entry and stay of persons living with

HIV/AIDS.

841 Utlänningslagen (Aliens Act) (SFS 1989: 529), modified on 19 January 1993.842 Utlänningsförordningen (Aliens Ordinance) (SFS 1989: 547; SFS 1995: 254).843 Immigration Act 1971 (1971 c 77), Immigration Act 1988 (1988 c 14), Immigration Order 1996 n° 2145.


■ Immigration Act 1971

Schedule 2, Section 4, Part I, 2

(...) Any such person, if he is seeking to enter the United Kingdom, may be examined also

by a medical inspector or by any qualified person carrying out a test or examination required

by a medical inspector.

Section 3, (5)

A person who is not a British citizen shall be liable to deportation from the United Kingdom

(…) if the Secretary of State deems his deportation to be conducive to the public good.

■ Regulation of 23 May 1994 (HC 395)

Article 36

A person who intends to remain in the United Kingdom for more than six months should

normally be referred to the Medical Inspector for examination (…). Any person seeking

entry who mentions health or medical treatment as a reason for his visit, or who appears not

to be in good mental or physical health, should be referred to the Medical Inspector (…).

Article 37

Where the Medical Inspector advises that a person seeking entry is suffering from a specified

disease or condition which may interfere with his ability to support himself or his dependants,

the Immigration Officer should take account of this, in conjunction with other factors, in

deciding whether to admit that person.

Article 259

The conditions for the issue of an EEA family permit are that (…)

(iii) the applicant is not a person who is liable to excluded on grounds of public policy, public

security or public health.

■ Instruction BDI

2.1. (…) The fact that an applicant has AIDS or is HIV positive is not grounds for

refusing leave to remain if the person concerned otherwise qualifies under the Immigration

Rules.

2.2. Equally the fact that an applicant has AIDS or is HIV positive is not in itself sufficient

to justify the exercise of discretion where the requirements of the Rules are not met. As a

general rule, AIDS cases requiring the exercise of discretion should be evaluated in the same

way as any other case where the applicant has a terminal illness e.g. cancer. Cases involving

persons certified as having AIDS should be distinguished from those where the person


concerned has only been diagnosed as HIV positive. Such a person may still be well and a

serious case for exceptional treatment is unlikely to arise.

3. Removal

3.1. The general policy is that enforcement action may be pursued in relation to persons

with AIDS or who are HIV positive unless the medical evidence available is sufficient to

satisfy the Department that the person is not fit to travel and/or their life expectancy would

be substantially shortened if they were removed or deported. It follows that removal action,

where appropriate, should be undertaken as soon as possible.

3.2. In many cases the medical facilities and treatment available in the person’s country of

origin will be substantially less advanced than those available in the UK. This is likely to be

true as regards any serious illness and does not in itself constitute grounds for allowing

someone with AIDS/HIV to remain. It is, however, a factor which will have to be taken

into account in considering removal as enforcement action may be inappropriate in the case

of a terminally ill person where there are no facilities for treatment in the country to which

he would be removed.

The free movement of persons living with HIV/AIDS – Annexe II (2): European states, Case law, D. v. UK 249

(2) Case Law: case of D. v. United KingdomJudgment of the European Court of Human Rights of 2 May 1997(146/1996/767/964)

Summary

United Kingdom – proposed removal of an alien drug courier dying of AIDS to his

country of origin (St. Kitts) where he has no accommodation, family, moral or financial

support and no access to adequate medical treatment.

I. Article 3 of the Convention

Expulsion of alien drug couriers is a justified response to the scourge of drug trafficking –

right of contracting states to expel aliens is however subject to the need to respect the

absolute nature of the prohibition contained in article 3 – duty of respondent state to

secure to the applicant the guarantees contained in article 3 irrespective of the gravity of

the offence committed – applicant within the jurisdiction of the respondent state since

21 January 1993 even if he never entered in the technical sense.

Application of this principle is not confined to contexts in which the individual to

be expelled faces a real risk of being exposed to forms of treatment proscribed by article 3

which are intentionally inflicted by public authorities in receiving state or by non-state

bodies when the public authorities in that state are unable to afford him appropriate

protection – Court must be able to apply article 3 in other contexts so as to avoid

undermining the absolute character of the article’s protection.

Conditions which await applicant in St. Kitts do not in themselves breach standards

of article 3 – respondent state has assumed responsibility for treating applicant since

August 1994 – applicant now reliant on medical and palliative care provided to him –

applicant has entered final stages of fatal illness – removal at this stage would hasten his

death and expose him to a real risk of dying under most distressing circumstances and

thus to inhuman treatment – no adequate medical treatment, no shelter, no family

support in receiving country.

Aliens who have served their prison sentences and are subject to expulsion cannot in

principle claim any entitlement to remain on territory of Contracting state in order to

continue to benefit from medical, social or other forms of assistance provided by that

state during their stay in prison.

250 The free movement of persons living with HIV/AIDS – Annexe II (2): European states, Case law, D. v. UK

However, in view of the very exceptional circumstances of case and the compelling

humanitarian considerations at stake, removal of applicant would violate article 3.

Conclusion: violation if the applicant were to be removed (unanimously).

II. Article 2 of the Convention

Applicant’s contention that circumstances of case engaged responsibility of

Government under article 2 – having regard to finding under article 3 not necessary to

examine article 2 complaint.

Conclusion: not necessary to examine this complaint (unanimously).

III. Article 8 of the Convention

Applicant’s assertion that removal would amount to a disproportionate interference

with his right to respect for private life, in particular his physical integrity – having regard

to finding under article 3 complaint article 8 raises no separate issue.

Conclusion: no separate issue arises (unanimously).

IV. Article 13 of the Convention

Confirmation of conclusion reached in certain earlier judgments concerning the

respondent state that judicial review proceedings constitute an effective remedy –

domestic court subjected the applicant’s plight to a most anxious scrutiny and had the

power to grant relief sought – substance of complaints examined.

Conclusion: no violation (unanimously).

V. Article 50 of the Convention

A. Damages: none claimed.

B. Costs and expenses: partial reimbursement of amount claimed.

Conclusion: respondent state to pay a specified sum to applicant (unanimously).

Court’s case-law referred to

7.7.1989, Soering v. the United Kingdom; 30.10.1991, Vilvarajah and Others v. the United

Kingdom; 15.11.1996, Chahal v. the United Kingdom; 17.12.1996, Ahmed v. Austria.

Arrest

In the case of D. v. the United Kingdom 1 The European Court of Human Rights, sitting, in

accordance with article 43 of the Convention for the Protection of Human Rights and


Fundamental Freedoms (‘the Convention’) and the relevant provisions of Rules of Court

A 2 , as a Chamber composed of the following judges:

Mr R. Ryssdal, President, Mr C. Russo, Mr A. Spielmann, Mr J. De Meyer, Sir John

Freeland, Mr A.B. Baka, Mr P. Kuris, Mr U. Lohmus, Mr J. Casadevall, and also of Mr H.

Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 20 February and 21 April 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

Procedure

1. The case was referred to the Court by the European Commission of Human Rights

(‘the Commission’) and by the Government of the United Kingdom of Great Britain and

Northern Ireland (‘the Government’) on 28 October 1996 and 14 November 1996

respectively, within the three-month period laid down by articles 32 paragraph 1 and

article 47 of the Convention. It originated in an application (no. 30240/96) against the

United Kingdom lodged with the Commission under article 25 on 15 February 1996 by

D., a national of St. Kitts. In the proceedings before the Commission the applicant was

identified only as ‘D.’. At the wish of the applicant this practice was maintained in the

proceedings before the Court.

The Government’s application referred to article 48 and the Commission’s request to

articles 44 and 48 and to the declaration whereby the United Kingdom recognised the

compulsory jurisdiction of the Court (article 46). The object of the application and the

request was to obtain a decision as to whether the facts of the case disclosed a breach by

the respondent state of its obligations under articles 2, 3, 8, and 13 of the Convention.

2. In response to the enquiry made in accordance with Rule 33 paragraph 3 (d) of Rules

of Court A, the applicant stated that he wished to take part in the proceedings and

designated the lawyer who would represent him (Rule 30).

1 The case is numbered 146/1996/767/964. The first number is the case’s position on the list of cases referred tothe Court in the relevant year (second number). The last two numbers indicate the case’s position on the listreferred to the Court since its creation and the list of the corresponding originating applications to theCommission.

2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994)and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules thatcame into force on 1 January 1983, as amended several times subsequently.


3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge

of British nationality (article 43 of the Convention), and Mr R. Ryssdal, the President of

the Court (Rule 21 paragraph 4 (b)). On 29 October 1996 in the presence of the

Registrar, the President of the Court drew by lot the names of the other seven members,

namely Mr C. Russo, Mr A. Spielmann, Mr J. De Meyer, Mr A.B. Baka, Mr P. Kuris, Mr

U.Lohmus, and Mr J. Casadevall (article 43 in fine of the Convention and Rule 21

paragraph 5).

Pursuant to Rule 36 of its Rules of Procedure, the Commission had requested the

Government not to deport the applicant and the Government provided assurances to

that effect. The Government was informed by the Registrar on 29 October 1996 that

under Rule 36 of Rules of Court A the interim measure indicated by the Commission

remained recommended.

4. As President of the Chamber (Rule 21 paragraph 6), Mr Ryssdal, acting through the

Registrar, consulted the Agent of the Government, the applicant’s lawyer and the

Delegate of the Commission on the organisation of the proceedings (Rules 37 paragraph 1

and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s

and the Government’s memorial on 9 January and 10 January 1997 respectively.

5. In accordance with the President’s decision, the hearing took place in public in the

Human Rights Building, Strasbourg, on 20 February 1997. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government:

Mr M. Eaton, Deputy Legal Adviser, Foreign and Commonwealth Office Agent, Mr D.

Pannick Q.C., Mr N. Garnham, Counsel, Ms S. McClelland, Mr S. Hewett, Advisers;

(b) for the Commission:

Mr J.-C. Geus, Delegate;

(c) for the applicant:

Mr N. Blake Q.C., Mr L. Daniel, Counsel, Mr A. Simmons, Ms R. Francis,

Solicitors, Mrs N. Mole, Adviser.

The Court heard addresses by: Mr Geus, Mr Blake and Mr Pannick and also replies

to questions put by two of its members.


As to the fact

I. Particular circumstances of the case

The applicant

6. The applicant was born in St. Kitts and appears to have lived there most of his life. He

is one of seven children. One sister and one brother moved to the United States in the

1970s and the rest of the family appears to have followed at unspecified dates. The

applicant visited the United States in 1989 to try to join his family. During his stay there

he was arrested on 5 September 1991 for possession of cocaine and subsequently

sentenced to a three year term of imprisonment. After one year, he was paroled for good

behaviour and deported on 8 January 1993 to St. Kitts.

The applicant’s arrival in the United Kingdom and subsequent imprisonment

7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought

leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport

terminal to be in possession of a substantial quantity of cocaine with a street value of

about £120,000. The Immigration Officer refused him leave to enter on the ground that

his exclusion was conducive to the public good and gave him notice that he would be

removed to St. Kitts within a matter of days.

However, after being arrested and charged, the applicant was remanded in custody

and subsequently prosecuted for being knowingly involved in the fraudulent evasion of

the prohibition on the importation of controlled drugs of Class A. He pleaded guilty at

Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years’

imprisonment. He apparently behaved well while in H.M. Prison Wayland and was

released on licence on 24 January 1996. He was placed in immigration detention pending

his removal to St. Kitts. Bail was granted by an adjudicator on 31 October 1996 after the

Commission’s report had been made public.

Diagnosis of AIDS

8. In August 1994, while serving his prison sentence, the applicant suffered an attack of

pneumocystis carinii pneumonia (‘PCP’) and was diagnosed as HIV positive and as

suffering from AIDS. The infection appears to have occurred some time before his arrival

in the United Kingdom.


9. On 3 March 1995, the applicant was granted a period of compassionate leave to be

with his mother whose air fare to the United Kingdom to visit him had been covered by

charitable donations.

10. On 20 January 1996, immediately prior to his release on licence, the immigration

authorities gave directions for the applicant’s removal to St. Kitts.

The applicant’s request to remain in the United Kingdom

11. By letter dated 23 January 1996, the applicant’s solicitors requested that the secretary

of state grant the applicant leave to remain on compassionate grounds since his removal to

St. Kitts would entail the loss of the medical treatment which he was currently receiving

thereby shortening his life expectancy (see §§ 13 and 14 below). This request was refused

on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to

the applicant’s solicitors the Chief Immigration Officer stated:

‘In reaching this decision full account was taken of paragraph 4 of the Immigration

and Nationality Department B Division Instructions regarding AIDS and HIV positive

cases. You will be aware that paragraph 4 of this instruction which relates to persons

whose applications are for leave to enter the United Kingdom states [see paragraph 27 of

the judgment below] ... While we are saddened to learn of Mr D[..]’s medical

circumstances we do not accept, in line with Departmental Policy, that it is right

generally or in the individual circumstances of this case, to allow an AIDS sufferer to

remain here exceptionally when, as here, treatment in this country is carried out at public

expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers

any differently from others suffering medical conditions....’

Judicial review proceedings

12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave

to apply for judicial review of the decision to refuse him leave to enter. On 15 February

1996, the Court of Appeal dismissed his renewed application. It found that section 3 of

the Immigration Act 1971 drew a distinction between leave to enter and leave to remain.

It held that the Chief Immigration Officer had correctly treated Mr D.’s application as an

application for leave to enter and was not required to take into account paragraph 5 of

the Home Office guidelines which applied to applications for leave to remain (see §§ 27

and 28 below). As to the applicant’s argument that the Home Office acted unreasonably


or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain

Glidewell stated in his judgment:

‘Nobody can but have great sympathy for this applicant in the plight in which he finds

himself. If he is to return to St. Kitts it seems that he will be unable to work because of his

illness. His expectation of life, if the medical evidence is correct, may well be shorter than it

would be if he remained under the treatment that he is receiving in the United Kingdom,

and in many ways his plight will be great. On the other hand he would not be here if he had

not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he

would have gone back to St. Kitts, if he had ever come here at all, long before his AIDS was

diagnosed. Taking account of the fact that the court must give most anxious scrutiny to a

decision which involves questions particularly of life expectancy, as this one apparently

does, nevertheless I cannot find that an argument in this case that the decision of the Chief

Immigration Officer was irrational is one that has any hope of success at all. Putting it the

opposite way, it seems to me to be one which was well within the bounds of his discretion,

and thus is not one with which the court can properly interfere.’

Reports on the applicant’s medical condition, treatment and prognosis

13. Since August 1995, the applicant’s CD4 cell count has been below 10. He has been in

the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest

infections, malaise, skin rashes, weight loss and periods of extreme fatigue.

14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated:

‘His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he

occasionally takes mystatin pastilles and skin emollients.

In view of the fact that [the applicant] has now had AIDS for over 18 months and

because this is a relentlessly progressive disease his prognosis is extremely poor.

In my professional opinion [the applicant’s] life expectancy would be substantially

shortened if he were to return to St. Kitts where there is no medication; it is important

that he receives pentamidine treatment against PCP and that he receives prompt anti-

microbial therapy for any further infections which he is likely to develop...’

15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of

immunology at a London hospital, stated that the applicant had suffered severe and

irreparable damage to his immune system and was extremely vulnerable to a wide range of


specific infections and to the development of tumours. The applicant was reaching the

end of the average durability of effectiveness of the drug therapy which he was receiving.

It was stated that the applicant’s prognosis was very poor and limited to 8-12 months on

present therapy. It was estimated that withdrawal of the proven effective therapies and of

proper medical care would reduce that prognosis to less than half of what would be

otherwise expected.

Medical facilities in St. Kitts

16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States

informed the doctor treating the applicant in prison that the medical facilities in St. Kitts

did not have the capacity to provide the medical treatment that he would require. This

was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical

officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the

Home Office of the contents of the letter from the High Commission, which had also been

sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not

available in St. Kitts but was widely and freely available in the United Kingdom and

requested due consideration be given to lifting the deportation order in respect of the

applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean

States confirmed that the position in St. Kitts had not changed.

17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the

applicant’s representatives that they had consulted their officer on St. Kitts who stated

that there was no health care providing for drugs treatment of AIDS.

Results of enquiries made by the Government of the authorities in St. Kitts suggest

that there are two hospitals in St. Kitts which care for AIDS patients by treating them for

opportunistic infections until they are well enough to be discharged, and that an

increasing number of AIDS sufferers there live with relatives.

The applicant’s family situation in St.Kitts

18. The applicant has no family home or close family in St. Kitts other than, according to

information provided by the Government, a cousin. His mother, who currently lives in

the United States, has declared that her age, bad health and lack of resources prevent her

from returning to St. Kitts to look after her son if he were to be returned there. She has

also stated that she knew of no relatives who would be able to care for him in St. Kitts.


The applicant’s situation since the adoption of the Commission’s report

19. When granted bail on 31 October 1996 (see § 7 above) the applicant was released

to reside in special sheltered accommodation for AIDS patients provided by a

charitable organisation working with homeless persons. Accommodation, food and

services are provided free of charge to the applicant. He also has the emotional

support and assistance of a trained volunteer provided by the Terrence Higgins

Trust, the leading Charity in the United Kingdom providing practical support, help,

counselling and legal and other advice for persons concerned about or having AIDS

or HIV infection.

20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical

immunology treating the applicant at a London Hospital, noted that he was at an

advanced stage of HIV infection and was severely immunosuppressed. His prognosis was

poor. The applicant was being given antiretroviral therapy with D4T and 3TC to reduce

the risk of opportunistic infection and was continuing to be prescribed Pentamidine

nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic

infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV

therapy and preventative measures for opportunistic disease would hasten his death if he

were to be returned to St. Kitts.

21. The applicant was transferred to an AIDS hospice around the middle of January 1997

for a period of respite care. At the beginning of February there was a sudden deterioration

in his condition and he had to be admitted to a hospital on 7 February for examination.

At the hearing before the Court on 20 February 1997, it was stated that the applicant’s

condition was causing concern and that the prognosis was uncertain. According to his

counsel, it would appear that the applicant’s life was drawing to a close much as the

experts had predicted (see § 15 above).

II. Relevant domestic law and practice

22. The regulation of entry into and stay in the United Kingdom is governed by Part 1 of

the Immigration Act 1971. The practice to be followed in the administration of the Act

for regulating entry and stay is contained in statements of the rules laid by the secretary of

state before Parliament (‘the Immigration Rules’).


23. Section 3(1) provides that a person who is not a British citizen shall not enter the

United Kingdom unless given leave to do so in accordance with the provisions of the

Act. Leave to enter may be granted for a limited or for an indefinite period.

24. Under section 4(1) of the Act the power to grant or refuse leave to enter is exercised

by immigration officers whereas the power to grant leave to remain in the United

Kingdom is exercised by the secretary of state. These powers are exercisable by notice in

writing given to the person affected.

25. A person, such as the applicant, who has been refused leave to enter but is physically

in the United Kingdom pending his removal, and seeks to be allowed to stay there does

not fall to be treated as applying for leave to remain. Since no leave to enter had been

granted to the applicant, it was right according to the judgment of Sir Iain Glidewell in R

v. Secretary for State for the Home Department ex parte D (Court of Appeal, 15 February

1996) for the Immigration Officer to treat his application as an application for leave to

enter rather than for leave to remain.

Policy guidelines on how to proceed in cases in which persons seeking to enter or

remain in the United Kingdom are suffering from AIDS or are HIV positive

26. The Immigration and Nationality Department of the Home Office issued a policy

document (BDI 3/95) on this subject in August 1995. Paragraph 2 of the guidelines

specifies that the fact that a person is suffering from AIDS or is HIV positive is not a

ground for refusing leave to enter or leave to remain if the person concerned otherwise

qualifies under the Immigration Rules. Equally this fact is not in itself a sufficient ground

to justify the exercise of discretion where the person concerned has not met the

requirements of the Rules.

The policy guidelines distinguish between applications for leave to enter and

applications for leave to remain.

27. On applications for leave to enter (paragraph 4 of the guidelines), where the person is

suffering from AIDS, the policy and practice is to adhere to the provisions of the

Immigration Rules in the normal way. Where such a person does not qualify under the

Rules, entry is refused.


28. On applications for leave to remain (paragraph 5 of the guidelines), the application

should be dealt with normally on its merits under the applicable Rules. However, there is

a discretion outside the Rules which can be exercised in strong compassionate

circumstances. Paragraph 5.4 states that ‘... there may be cases where it is apparent that

there are no facilities for treatment available in the applicant’s own country. Where

evidence suggests that this absence of treatment significantly shortens the life expectancy

of the applicant it will normally be appropriate to grant leave to remain.’

Other relevant materials

29. Among the documentary materials submitted by the applicant, are the following:

1. International policy statements on human rights and AIDS

30. International concern about AIDS has resulted in the adoption of several

international texts which have addressed inter alia the protection of the human rights of

the victims of the disease. Thus, the United Nations Commission on Human Rights

adopted a Resolution on 9 March 1993 on the protection of human rights in the context

of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome

(AIDS) in which it called upon:

‘all states to ensure that their laws, policies and practices introduced in the context

of AIDS respect human rights standards’.

31. At a Summit of Heads of Government or Representatives of forty-two states meeting

in Paris on 1 December 1994, a Declaration was adopted in which the participating states

solemnly declared their obligation:

‘to act with compassion for and in solidarity with those with HIV or at risk of becoming

infected, both within [their] societies and internationally’.

2. Extract of the WHO Report on ‘Health Conditions in the Americas’, 1994,

Volume II, concerning St. Kitts and Nevis

32. ‘Health and Living Conditions

‘...there are a number of serious environmental problems, such as inadequate disposal of

solid and liquid waste – especially untreated sewage – into coastal lands and waters,


resulting in coastal zone degradation, fish depletion and health problems (gastro-

enteritis)...’

33. According to this publication, there are two general hospitals in St. Kitts, one with

174 beds and the other with 38. There is also a ‘cottage’ hospital with 10 beds. There are

two homes providing geriatric care.

3. ‘Treatment issues – a basic guide to medical treatment options for people with

HIV and AIDS’ produced in April 1996 by the Terrence Higgins Trust

34. This guide describes the three medical strategies available for treating HIV and AIDS:

using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune

system, treating or preventing opportunistic infections which take advantage of damage

to the immune system and strengthening and restoring the immune system. Amongst the

first category, several drugs can be used, including AZT (also known as zidovudine or its

tradename retrovir). This belongs to a family of drugs called nucleoside analogues which

inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited,

HIV cannot infect new cells and the build up of virus in the body is slowed down.

However, the existing drugs are only partially effective and at best can only delay the

worsening of HIV-related disease rather than prevent it.

35. As regards the second category, persons whose immune systems have been

significantly damaged are vulnerable to a range of infections and tumours known as

opportunistic infections. These commonly include cytomegalovirus (herpes virus),

kaposi’s sarcoma, anaemia, tuberculosis, toxiplasmosis and PCP. PCP is a form of

pneumonia which in people with HIV may affect the lymph nodes, bone marrow, spleen

and liver as well as the lungs. Steps to avoid such infections include taking care with food

and drink and prophylactic treatment by drugs. In the case of PCP which was a common

cause of death during the first years of the epidemic and is still one of the commonest

AIDS illnesses, options include the long-term taking of antibiotics such as co-trimoxazole

and the use of nebulised pentamidine which is intended to protect the lungs.

36. In relation to the third category, treatment which strengthens or restores the immune

system, research has yet to produce any clear results.


Proceeding before the Commission

37. The applicant lodged his application (no. 30240/96) with the Commission on 15

February 1996. He alleged that his proposed removal to St. Kitts would be in violation of

articles 2, 3 and 8 of the Convention and that he had been denied an effective remedy to

challenge the removal order in breach of article 13.

The Commission declared the application admissible on 26 June 1996. In its report

of 15 October 1996 (article 31), it expressed the opinion that article 3 would be violated

if the applicant were to be removed to St. Kitts (11 votes to 7); that it was unnecessary to

examine the complaint under article 2 (unanimously); that no separate issue arose under

article 8 (unanimously); and that there had been no violation of article 13 (13 votes to

5). The full text of the Commission’s opinion and of the two separate opinions contained

in the report are reproduced as an annexe to this judgment 3.

Final submissions to the Court

38. In their memorial and at the oral hearing the Government requested the Court to

decide and declare that the facts disclose no breach of the applicant’s rights under articles

2, 3, 8 or 13 of the Convention.

The applicant requested the Court in his memorial and at the oral hearing to find

that his proposed removal from the United Kingdom would, if implemented, constitute a

breach of articles 2, 3 and 8 of the Convention and that he had no effective remedy in

respect of those complaints in breach of article 13.

As to the law

I. Alleged violation of article 3 of the Convention

39. The applicant maintained that his removal to St. Kitts would expose him to inhuman

and degrading treatment in breach of article 3 of the Convention, which provides:

‘No one shall be subjected to torture or to inhuman or degrading treatment

or punishment.’

3 Note by the Registrar. For practical reasons this annexe will appear only with the printed version of thejudgment (in Reports of Judgments and Decisions - 1997), but a copy of the Commission’s report is obtainablefrom the registry.


A. Arguments of those appearing before the Court

The applicant

40. The applicant maintained that his removal to St. Kitts would condemn him to spend

his remaining days in pain and suffering in conditions of isolation, squalor and

destitution. He had no close relatives or friends in St. Kitts to attend to him as he

approached death. He had no accommodation, no financial resources and no access to

any means of social support. It was an established fact that the withdrawal of his current

medical treatment would hasten his death on account of the unavailability of similar

treatment in St. Kitts. His already weakened immune system would not be able to resist

the many opportunistic infections to which he would be exposed on account of his

homelessness, lack of proper diet and the poor sanitation on the island. The hospital

facilities were extremely limited and certainly not capable of arresting the development of

infections provoked by the harsh physical environment in which he would be obliged to

fend for himself. His death would thus not only be further accelerated, it would also come

about in conditions which would be inhuman and degrading.

41. In June 1996, his life expectancy was stated to be in the region of eight to twelve

months even if he continued to receive treatment in the United Kingdom. His health

had declined since then. As he was now clearly weak and close to death, his removal by

the respondent state at this late stage would certainly exacerbate his fate.

The Government

42. The Government requested the Court to find that the applicant had no valid claim

under article 3 in the circumstances of the case since he would not be exposed in the

receiving country to any form of treatment which breached the standards of article 3. His

hardship and reduced life expectancy would stem from his terminal and incurable illness

coupled with the deficiencies in the health and social welfare system of a poor,

developing country. He would find himself in the same situation as other AIDS victims in

St. Kitts. In fact he would have been returned in January 1993 to St. Kitts, where he had

spent most of his life, had it not been for his prosecution and conviction.

43. The Government also disputed the applicant’s claim that he would be left alone and

without access to treatment for his condition. They maintained that he had at least one

cousin living in St. Kitts and that there were hospitals caring for AIDS patients,


including those suffering from opportunistic infections (see § 17 above). Even if the

treatment and medication fell short of that currently administered to the applicant in the

United Kingdom, this in itself did not amount to a breach of article 3 standards.

44. Before the Court the Government observed that it was their policy not to remove a

person who was unfit to travel. They gave an undertaking to the Court not to remove the

applicant unless, in the light of an assessment of his medical condition after the Court

gives judgment, he is fit to travel.

The Commission

45. The Commission concluded that the removal of the applicant to St. Kitts would

engage the responsibility of the respondent state under article 3 even though the risk of

being subjected to inhuman and degrading treatment stemmed from factors for which the

authorities in that country could not be held responsible. The risk was substantiated and

real. If returned, he would be deprived of his current medical treatment and his already

weakened immune system would be exposed to untreatable opportunistic infections

which would reduce further his limited life expectancy and cause him severe pain and

mental suffering. He would be homeless and without any form of moral, social or family

support in the final stages of his deadly illness.

B. The Court’s assessment

46. The Court recalls at the outset that contracting states have the right, as a matter of

well-established international law and subject to their treaty obligations including the

Convention, to control the entry, residence and expulsion of aliens. It also notes the

gravity of the offence which was committed by the applicant and is acutely aware of the

problems confronting contracting states in their efforts to combat the harm caused to

their societies through the supply of drugs from abroad. The administration of severe

sanctions to persons involved in drug trafficking, including expulsion of alien drug

couriers like the applicant, is a justified response to this scourge.

47. However in exercising their right to expel such aliens contracting states must have

regard to article 3 of the Convention which enshrines one of the fundamental values of

democratic societies. It is precisely for this reason that the Court has repeatedly stressed

in its line of authorities involving extradition, expulsion or deportation of individuals to

third countries that article 3 prohibits in absolute terms torture or inhuman or degrading


treatment or punishment and that its guarantees apply irrespective of the reprehensible

nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria

judgment of 17 December 1996, § 38; and the Chahal v. the United Kingdom judgment

of 15 November 1996, §§ 73-74).

48. The Court observes that the above principle is applicable to the applicant’s removal

under the Immigration Act 1971. Regardless of whether or not he ever entered the

United Kingdom in the technical sense (see § 25 above) it is to be noted that he has

been physically present there and thus within the jurisdiction of the respondent state

within the meaning of article 1 of the Convention since 21 January 1993. It is for the

respondent state therefore to secure to the applicant the rights guaranteed under article 3

irrespective of the gravity of the offence which he committed.

49. It is true that this principle has so far been applied by the Court in contexts in which

the risk to the individual of being subjected to any of the proscribed forms of treatment

emanates from intentionally inflicted acts of the public authorities in the receiving

country or from those of non-state bodies in that country when the authorities there are

unable to afford him appropriate protection (see, for example, the Ahmed v. Austria

judgment, § 44).

Aside from these situations and given the fundamental importance of article 3 in the

Convention system, the Court must reserve to itself sufficient flexibility to address the

application of that article in other contexts which might arise. It is not therefore

prevented from scrutinising an applicant’s claim under article 3 where the source of the

risk of proscribed treatment in the receiving country stems from factors which cannot

engage either directly or indirectly the responsibility of the public authorities of that

country, or which, taken alone, do not in themselves infringe the standards of that article.

To limit the application of article 3 in this manner would be to undermine the absolute

character of its protection. In any such contexts, however, the Court must subject all the

circumstances surrounding the case to a rigorous scrutiny, especially the applicant’s

personal situation in the expelling state.

50. Against this background the Court will determine whether there is a real risk that the

applicant’s removal would be contrary to the standards of article 3 in view of his present

medical condition. In so doing the Court will assess the risk in the light of the material


before it at the time of its consideration of the case, including the most recent information

on his state of health (see the Ahmed v. Austria judgment, § 43).

51. The Court notes that the applicant is in the advanced stages of a terminal and

incurable illness. At the date of the hearing, it was observed that there had been a

marked decline in his condition and he had to be transferred to a hospital. His condition

was giving rise to concern (see § 21 above). The limited quality of life he now enjoys

results from the availability of sophisticated treatment and medication in the United

Kingdom and the care and kindness administered by a charitable organisation. He has

been counselled on how to approach death and has formed bonds with his carers (see

§ 19 above).

52. The abrupt withdrawal of these facilities will entail the most dramatic consequences

for him. It is not disputed that his removal will hasten his death. There is a serious danger

that the conditions of adversity which await him in St. Kitts will further reduce his

already limited life expectancy and subject him to acute mental and physical suffering.

Any medical treatment which he might hope to receive there could not contend with the

infections which he may possibly contract on account of his lack of shelter and of a

proper diet as well as exposure to the health and sanitation problems which beset the

population of St. Kitts (see § 32 above). While he may have a cousin in St. Kitts (see §

18 above) no evidence has been adduced to show whether this person would be willing to

or capable of attending to the needs of a terminally ill man. There is no evidence of any

other form of moral or social support. Nor has it been shown whether the applicant would

be guaranteed a bed in either of the hospitals on the island which, according to the

Government, care for AIDS patients (see § 17 above).

53. In view of these exceptional circumstances and bearing in mind the critical stage now

reached in the applicant’s fatal illness, the implementation of the decision to remove him

to St. Kitts would amount to inhuman treatment by the respondent state in violation of

article 3.

The Court also notes in this respect that the respondent state has assumed

responsibility for treating the applicant’s condition since August 1994. He has become

reliant on the medical and palliative care which he is at present receiving and is no doubt

psychologically prepared for death in an environment which is both familiar and


compassionate. Although it cannot be said that the conditions which would confront

him in the receiving country are themselves a breach of the standards of article 3, his

removal would expose him to a real risk of dying under most distressing circumstances

and would thus amount to inhuman treatment.

Without calling into question the good faith of the undertaking given to the Court

by the Government (see § 44 above), it is to be noted that the above considerations must

be seen as wider in scope than the question whether or not the applicant is fit to travel

back to St. Kitts.

54. Against this background the Court emphasises that aliens who have served their

prison sentences and are subject to expulsion cannot in principle claim any entitlement

to remain on the territory of a Contracting state in order to continue to benefit from

medical, social or other forms of assistance provided by the expelling state during their

stay in prison.

However, in the very exceptional circumstances of this case and given the

compelling humanitarian considerations at stake, it must be concluded that the

implementation of the decision to remove the applicant would be a violation of article 3.

II. Alleged violation of article 2 of the Convention

55. The applicant further maintained that the implementation by the United Kingdom

authorities of the decision to remove him to St. Kitts would be in breach of article 2 of

the Convention, which provides:

‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of a

crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article

when it results from the use of force which is no more than absolutely necessary.

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person

lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.’


56. The applicant contended that his removal to St. Kitts would engage the responsibility

of the respondent state under article 2. He is terminally ill, and the medical evidence

submitted to the Court (see §§ 14 and 15 and 20 and 21 above) confirmed that his

already reduced life expectancy would be further shortened if he were to be suddenly

deprived of his current medical treatment and sent back to St. Kitts. There would, he

argued, be a direct causal link between his expulsion and his accelerated death such as to

give rise to a violation of the right to life. He submitted that article 2 denoted a positive

obligation to safeguard life which in the circumstances at issue required the Government

not to take a measure which would further reduce his limited life expectancy.

57. The Government did not dispute the fact that the removal of the applicant to St.

Kitts and the consequential loss of the current medical treatment would hasten his death.

However the threat to his life expectancy stemmed not from factors for which the

Government could be held responsible but from his own fatal illness in conjunction

with the lack of adequate medical treatment in the receiving country. Article 2 was

therefore not applicable to the circumstances at issue. In any event the substance of

the applicant’s complaints could not be separated from the arguments he advanced in

furtherance of his allegation under article 3 and for that reason were best dealt with

under the latter provision.

58. The Commission did not find it necessary to decide whether the risk to the

applicant’s life expectancy created by his removal disclosed a breach of article 2. It

considered that it would be more appropriate to deal globally with this allegation when

examining his related complaints under article 3.

59. The Court for its part shares the views of the Government and the Commission that

the complaints raised by the applicant under article 2 are indissociable from the substance

of his complaint under article 3 in respect of the consequences of the impugned decision

for his life, health and welfare. It notes in this respect that the applicant stated before the

Court that he was content to base his case under article 3.

Having regard to its finding that the removal of the applicant to St. Kitts would give rise

to a violation of article 3 (see § 54 above), the Court considers that it is not necessary to

examine his complaint under article 2.


III. Alleged violation of article 8 of the Convention

60. The applicant also alleged that his proposed removal to St. Kitts would violate his

right to respect for his private life, as guaranteed by article 8 of the Convention.

Article 8 provides:

‘1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society in

the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.’

61. In support of this argument the applicant maintained that his removal would amount

to a disproportionate interference with his right to respect for his private life, and in

particular his right to respect for his physical integrity. While readily accepting that the

offence he had committed was a very serious one, he requested the Court to consider the

impact which his removal to St. Kitts would entail for him, a terminally ill person with

no family or close relatives in the receiving country, no moral or social support and no

adequate medical treatment to stave off infection to his already weakened immune

system. His continued presence in the United Kingdom could not be considered a burden

on the domestic health resources and, furthermore, there were no indications that he

would re-offend.

62. The Government maintained that the applicant could not rely on article 8 to

challenge the impact of the impugned decision on his right to private life since his private

life was constituted in the receiving country where he had lived most of his life. Any links

which the applicant had with the United Kingdom were the direct result of the offence for

which he had been sentenced. Even if article 8 were to be regarded as applicable, the

interference with his medical interests by removing him to St. Kitts was justified, given the

seriousness of the offence he had committed, for reasons of the prevention of crime and in

the interests of the economic well-being of the United Kingdom.

63. Although the Commission found that no separate issue arose under article 8 in view of

its findings under article 3, the Delegate invited the Court to find a violation of article 8


in the event of a conclusion that the applicant’s removal to St. Kitts would not violate

article 3.

64. Having regard to its finding under article 3 (see § 54 above), the Court concludes

that the applicant’s complaints under article 8 raise no separate issue.

IV. Alleged violation of article 13 of the Convention

65. The applicant complained that he had no effective remedy in English law in respect

of his complaints under articles 2, 3 and 8 of the Convention. He contended that this

gave rise to a breach of article 13 of the Convention, which provides:

‘Everyone whose rights and freedoms as set forth in [the] Convention are violated

shall have an effective remedy before a national authority notwithstanding that the

violation has been committed by persons acting in an official capacity.’

66. The applicant pointed to the limitations which circumscribed an effective review by

courts in the United Kingdom of the decisions reached by the authorities in expulsion

cases. When reviewing the legality of administrative decisions the courts did not treat the

Convention and the principles developed by the Court as a relevant consideration; nor

was the decision-maker obliged to take account of the Convention and the case-law of

the Convention institutions when exercising the powers conferred by legislation such as

the Immigration Act 1971. Admittedly the domestic courts will review decisions with

greater rigour when they have an impact on human rights, but even in such cases they do

not take a Convention-based approach. Thus, in the case at issue, the Court of Appeal

did not seek to satisfy itself whether the removal of the applicant would expose him to

inhuman and degrading treatment but merely examined whether the decision-maker had

taken this factor into account. This, he maintained, fell short of the test of ‘independent

scrutiny’ of a claim that there exist substantial grounds for fearing a real risk of treatment

proscribed by article 3 which the Court in its Chahal v. the United Kingdom judgment

(loc. cit., paragraph 151) had considered to be a crucial aspect of an effective remedy.

Furthermore the Court of Appeal had regarded the seriousness of the applicant’s offence

as a paramount consideration in deciding that the impugned decision was not an

irrational one and had failed also to take adequate account of the Convention’s

requirements when dealing with his complaints under articles 2 and 8. For these reasons

it could not be said that the judicial review proceedings afforded him an effective remedy

within the meaning of article 13.


67. The Government disputed this argument and invited the Court to confirm the

conclusion which it had reached in certain earlier judgments that judicial review

proceedings afforded an effective remedy to challenge the legality of a decision to expel or

deport an individual. The courts in the United Kingdom applied a ‘most anxious scrutiny’

test when reviewing administrative decisions which affect the fundamental rights of

individuals. The Court of Appeal applied such a test in this case when assessing the

merits of the decision to remove the applicant and took due account of the hardship

which the implementation of the decision would cause the applicant. The applicant

cannot therefore argue that he was denied an effective remedy.

68. The Commission agreed with the Government. The Court of Appeal examined the

substance of the applicant’s complaint, including the hardship which would result from his

removal. Although the Court of Appeal did not quash the decision to remove him it had

the power to do so. The remedy afforded by judicial review was therefore an effective one.

69. The Court observes that article 13 of the Convention guarantees the availability at

national level of a remedy to enforce the substance of the Convention rights and

freedoms in whatever form they might happen to be secured in the domestic legal order.

The effect of this article is thus to require the provision of a domestic remedy allowing

the competent national authority both to deal with the substance of the relevant

Convention complaint and to grant appropriate relief, although contracting states are

afforded some discretion as to the manner in which they conform to their obligations

under this provision (see, among other authorities, the Soering v. the United Kingdom

judgment of 7 July 1989, Series A no. 161, p. 47, paragraph 120; the Vilvarajah and

Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 39

paragraph 122).

70. In its Vilvarajah and Others judgment (loc. cit., p. 39, paragraph 123) and its Soering

judgment (loc. cit., pp. 47-48, paragraphs 121-124) the Court considered judicial review

proceedings to be an effective remedy in relation to the complaints raised under article 3

in the contexts of deportation and extradition. It was satisfied that English courts could

effectively control the legality of executive discretion on substantive and procedural

grounds and quash decisions as appropriate. It was also accepted that a court in the

exercise of its powers of judicial review would have power to quash a decision to expel or


deport an individual to a country where it was established that there was a serious risk of

inhuman or degrading treatment, on the grounds that in all the circumstances of the case

the decision was one that no reasonable secretary of state could take.

71. While it is true that the source of the risk of the prohibited treatment to which the

applicant will be exposed and the impugned measure are different from those in the

above cases there is no reason to depart from the conclusion reached in those cases in

respect of the effectiveness of judicial review proceedings for the purposes of article 13.

Indeed the Court of Appeal had regard to domestic case-law which required it to submit

the applicant’s plight to the most anxious scrutiny on account of the established risk to

his life expectancy. It did so against the background of the criteria which need to be

satisfied before an administrative decision can be challenged on the grounds of its

irrationality. The substance of the applicant’s complaint was therefore examined by the

Court of Appeal. That court had the power to afford him the relief he sought. The fact

that it did not do so is not a material consideration since the effectiveness of a remedy for

the purposes of article 13 does not depend on the certainty of a favourable outcome for an

applicant (see the Vilvarajah and Others judgment, loc. cit., p. 39, paragraph 122).

72. The applicant maintained that the effectiveness of the remedy invoked first before the

High Court and subsequently before the Court of Appeal was undermined on account of

their failure to conduct an independent scrutiny of the facts in order to determine whether

they disclosed a real risk that he would be exposed to inhuman and degrading treatment.

He relied on the reasoning in the Chahal v. the United Kingdom judgment (paragraph

151). However the Court notes that in that case the domestic courts were precluded from

reviewing the factual basis underlying the national security considerations invoked by the

Home Secretary to justify the expulsion of Mr Chahal. No such considerations arise in the

case at issue.

73. The applicant thus had available to him an effective remedy in relation to his

complaints under articles 2, 3 and 8 of the Convention. Accordingly there has been no

breach of article 13.


V. Application of article 50 of the Convention

74. Article 50 of the Convention provides:

‘If the Court finds that a decision or a measure taken by a legal authority or

any other authority of a High Contracting Party is completely or partially in

conflict with the obligations arising from the ... Convention, and if the internal

law of the said Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured party.’

A. Costs and expenses

75. The applicant did not seek damages. He claimed reimbursement of £49,443 and

FF13,811 incurred by way of costs and expenses in respect of the proceedings brought

before the Convention institutions.

76. The Government requested the Court to reduce the amount, mainly because the time

billed in respect of the preparation of certain parts of the case was excessive and the

number of lawyers engaged to work on the case unreasonable. They proposed the sum of

£29,313.16 and FF9,194.

77. The applicant defended the amount claimed on account of inter alia the complexity

of the issues involved and the speed with which the case had been treated by both the

Commission and the Court.

78. Making an assessment on an equitable basis, the Court awards the applicant £35,000

plus any VAT that may be chargeable under this head, less the FF33,216 already paid in

legal aid by the Council of Europe.

B. Default interest

79. According to the information available to the Court, the statutory rate of interest

applicable in the United Kingdom at the date of adoption of the present judgment is 8%

per annum.

For these reasons, the Court unanimously

1. Holds that the implementation of the decision to remove the applicant to St. Kitts

would violate article 3 of the Convention;


2. Holds that having regard to its conclusion under article 3 it is not necessary to

examine the applicant’s complaint under article 2 of the Convention;

3. Holds that the applicant’s complaint under article 8 of the Convention gives rise to

no separate issue;

4. Holds that there has been no violation of article 13 of the Convention;

5. Holds

(a) that the respondent state is to pay the applicant, within three months, £35,000

(thirty-five thousand pounds sterling) in respect of costs and expenses less FF33,216

(thirty three thousand two hundred and sixteen francs) to be converted into pounds

sterling at the rate applicable at the date of delivery of the present judgment;

(b) that simple interest at an annual rate of 8% shall be payable from the expiry of

the above-mentioned three months until settlement.

Done in English and in French, and delivered at a public hearing in the Human Rights

Building, Strasbourg, on 2 May 1997.

For the President,

Jan De Meyer, Judge

For the Registrar,

Michael O’Boyle,

Head of Division in the registry of the Court

274 The free movement of persons living with HIV/AIDS – Annexe II (3): European states, Summary table

(3) Summary tableThe table below summarizes the situation in different Member States as regards legislation

permitting certain limits to the free movement of persons living with HIV/AIDS.

COUNTRY FOREIGNERS IN GENERAL SPECIAL CATEGORIES

Entry Stay Removal EU Citizen* Others

Refugee Student

A. Austria PLE (89) N (90) N N (91) N (92) -

B. Belgium N (93) GL (95) GL (96) GL (99) GL + P (102) GL + P (101)

(trav.)

D. Germany GL (103) GL (104) GL (108) GL (111) GL (112) -

Bavaria AD (107) AD (107) AD (110) N (111) AD (113) AD (107)

DK. Denmark GL (114) GL (115) N (116) - N (117) -

E. Spain GL (118) GL (121) N (124) GL (125) N (129) P (128)

F. France N (130) GL+PLE GL (142) GL (150) GL (152) GL (151)

(134)

FIN. Finland N (153) N (154) N (156) GL (157) GL+P (159) GL (158)

GR. Greece GL (160) GL+P GL (164) GL (166) GL (168) PLA (167)

(162)

I. Italy GL (169) PLE (170) N (171) N (172) GL (173) -

IRL. Ireland GL (174) GL (175) GL (176) GL (177) GL (179) -

L. Luxembourg GL+PLE GL+PLE GL (182) GL+PLE - -

(180) (181) (183)

NL. Netherlands GL (184) GL (187) GL (188) GL (191) GL (193) GL

P. Portugal N (194) GL (196) N (198) GL (199) - -

S. Sweden N (202) N (204) N (206) GL GL (207) -

UK. UK GL+AD GL+AD GL+P GL (221) GL (223) GL

(208) (212) (218)

The free movement of persons living with HIV/AIDS – Annexe II (3): European states, Summary table 275

Key

AD Administrative decision imposing HIV screening

GL General legislation permitting certain restrictions on public health grounds,

without specifically targeting HIV.

PLA Particular legislation authorizing HIV screening

PLE Particular legislation excluding HIV screening

N Nihil

P HIV screening practised

( ) The figures in parentheses refer to the paragraph numbers in the text.

* All national legislation makes reference, in respect of Union citizens, to European

law. Reference should therefore be made to the interpretation of Directive 64/221

(§§ 35 seq.).

276 The free movement of persons living with HIV/AIDS – Annexe III (1): Third countries, national texts

Annexe III. Third countriesIn order to facilitate research, the reference numbers are the same as those in the text.

(1) National texts

A. Africa1. South Africa■ Law of 1991 on foreigners (entered into force on 1st October)

article 39 (2)

The persons referred to in sub-section 1 (prohibited persons) shall be the following, namely -

(a) any person who is likely to become a public charge by reason of infirmity of mind or

body (…)

(f) any person who is afflicted with any such contagious, communicable or other disease, or

who is a carrier of such a virus, as may be prescribed;

■ Governmental opinion no. R 2247 of 13 September 1991

The diseases and viruses specified under article 39 (f) are deemed to be the following:

a) cholera;

b) plague;

c) yellow fever.

2. Angola■ Law no 3/94 of 1994 on the legal status of Aliens (entered into force on

21st January)

Article 46

The residence authorization granted to foreigners is cancelled for ever as soon as (…) public

policy or national security are harmed.

Article 51

Notwithstanding international agreements and conventions to which the Republic of Angola

is party, foreigners who harm national security or public policy as expelled from the territory

(…)

The free movement of persons living with HIV/AIDS – Annexe III (1): Third countries, national texts 277

3. Botswana■ Immigration Act of 1996 (entered into force on 30th September)

Article 7

Subject to this Act, the following persons shall be prohibited immigrants and their entry into

or presence within Botswana is unlawful:

a) any person who, if he entered or remained in Botswana, would be likely to become a

public charge by reason of infirmity of mind or body (…) ;

b) any person who is infected or afflicted with or suffering from a prescribed disease unless

he has the written authority of an immigration officer to enter and remain in Botswana (…)

4. Burkina Faso■ Law no. 23/94/ADP promulgating the Code of Public Health

Article 123

The international health regulations will be applied to every aircraft and every person in an

‘international travel’ situation. (…) All the provisions of these regulations will apply in

particular with regard to the so-called quarantinable diseases: plague, cholera, yellow fever.

Article 124

Subject to possible subsequent modifications, the vaccination required upon arrival in

Burkina Faso, on a permanent basis, is vaccination against yellow fever for travellers aged

at least nine months with the exception of travellers from non-infected countries spending

less than fifteen days in the country. Vaccination must be certified by presentation of an

international vaccination certificate which is valid according to the definitions of the

international health regulations.

5. Burundi■ Decree-Law no 1/23 of 9 July 1982 regulating the access, stay, establishment and

removal of foreigners to, in and from Burundi

Article 2

In order to be authorized to enter the Republic of Burundi, the foreigner must fulfil the

following conditions:

(2) hold a medical certificate no more than three months old issued by a medical

practitioner, certifying that the holder is free of any contagious disease.

Article 4

Except for exceptions provided by an international treaty or by the law, access to the


territory is barred to any foreigner attempting to enter Burundi without carrying the required

documents or where the foreigner is in one of the following situations

(6) if he is afflicted by contagious diseases.

■ Decree-Law no. 1/007 of 20 March 1989 regulating the access, stay,

establishment and removal of foreigners to, in and from Burundi

Article 7

Subject to the provisions of chapter II of the present decree-law, access to Burundi is barred

in particular to foreigners who:

(4) are not in full possession of their mental faculties or who are afflicted by a contagious or

transmittable disease.

7. Ethiopia■ Proclamation no 271 of 1969 regulating the issuance of travel documents and visas,

and registration of foreigners in Ethiopia (entered into force on 22nd August)

Article 6

(1) No foreigner shall enter Ethiopia unless he is in possession of:

(c) a valid international health certificate demonstrating that he has received such

immunizations as our Minister of Public Health may from time to time prescribe.

9. Gambia■ Immigration Act Cap 16.02 of 1990

Article 13b

The following persons, not being citizens of Gambia, shall be prohibited immigrants […]:

any person suffering from any communicable disease that may be prescribed as such by the

Minister for the purposes of this Act.

10. Equatorial Guinea■ Law L/94/019/CTRN setting out the conditions for the entry and stay of

foreigners in the Republic of Guinea

Article 14

Any foreigner entering the Republic of Guinea is required to present, upon arrival, a valid

international health carnet which is recognized by international conventions or by the laws

and regulations in effect.


Article 38

In order to obtain the residence card or the alien’s carnet every applicant must send the

department in charge of security an application setting out the reasons for his application.

This application must be accompanied by a medical certificate delivered by an approved

medical practitioner, an extract of legal record, both under three months’ old (…).

11. Kenya■ Immigration Act of 1967 (entered into force on 1st December)

Article 3

(1) In this Act, a prohibited immigrant means a person who is not a citizen of Kenya and

who is

(c) a person who

(i) refuses to submit to examination by a medical practitioner after being required to do so

under section 11 (1) (d) of this Act; or

(ii) is certified by a medical practitioner to be suffering from a disease which makes his

presence in Kenya undesirable for medical reasons.

12. Lesotho■ Aliens Act of 1968 (entered into force on 1st March)

Article 13

(…) an authorized officer may, if he considers it necessary, require such an alien entering

or landing, to produce a medical certificate showing him to be free from any disease or

affliction.

Annexe 1

(…) An alien shall not be permitted or allowed under any provision of this Act to enter,

land in, or sojourn in Lesotho, unless -

(2) he will be able to subsist without becoming a public charge by reason of infirmity of

mind or body (…)

(3) his actions will benefit, and will not adversely affect -

(iv) the interests of defence, public safety, public policy, public health (…)


13. Madagascar■ Law no. 62-006 of 1992 establishing the organization and control of immigration

(entered into force on 16th June)

Article 13

A foreigner who has been allowed to stay temporarily in the country may be expelled when

his presence in the territory constitutes a threat to the maintenance of public policy, to the

protecting of health (…)

■ Decree no. 94-652 of 1994 abrogating decree no. 66-101 of 2 March 1996 and

establishing new rules for the application of law no. 62-002 of 16 June 1962

establishing the organization and control of immigration (entered into force on

7th November)

Article 22

Applications for residence permits must be submitted by applicants of both sexes aged 21 or over

with the administrative authority of their place of residence and contain the following items:

(d) a medical certificate issued under conditions to be set by the Minister of Public Health

14. Malawi■ 1964 Immigration Act

Section 4

(1) Subject to this Act, the following persons shall be prohibited immigrants and their entry

into or presence within Malawi shall be unlawful

(c) any person who at the time of his entry is to become a public charge by reason of

infirmity of mind or body (…)

(e) any person who is infected, afflicted with or suffering from a prescribed disease, unless

he is in possession of a permit issued by the Minister (…)

■ 1968 Immigration Regulation, Part III

Prescribed diseases

The following diseases shall be the diseases prescribed for the purposes of section 4 (1) (e) of

the Act

a) tuberculosis;

b) trachoma;

c) favus;

d) framboesia or yaws;


e) syphilis or gonorrhoea;

f) scabies; and

g) leprosy.

16. Namibia■ Immigration Control Act of 1994 (entered into force on 29th July)

Article 39

(2) A person referred to in subsection (1) shall be a prohibited immigrant in respect of

Namibia, if

(c) such a person is likely to become a public charge by reason of infirmity of mind or body

(…)

(e) such a person is infected or afflicted with a contagious disease or is a carrier of such a

virus or disease, as may be prescribed

17. Nigeria■ Immigration Act of 1963 (entered into force on 1st August)

Article 49

49. Special cases where entry may be refused

(d) on the advise of a medical inspector it is undesirable for medical reasons to admit

such a person.

18. Oman■ Ministerial resolution no. 1 of 19 January 1990 on the the national programme

for the prevention of acquired immuno-deficiency syndrome (AIDS)

Article 4

Foreigners resident in the country and afflicted by confirmed AIDS must be expelled

to their countries in order to undergo medical treatment there with the assistance of the

specialist authorities.

19. Uganda■ Statutory Instrument no. 29 of 1984

Section 19

No person shall be granted a Certificate of Residence unless he (…) has undergone a

medical examination to certify his mental and physical condition and obtained a certificate to

the effect that he is a normal and healthy person.


Section 8(1)

Prohibited Immigrants: (…)

(c) any person who

(i) refuses to submit to a medical examination after having been required so to do under the

provisions of Section 5 of the Immigration Act;

(ii) is certified by a medical practitioner appointed for the purpose by the Minister, to be

suffering from a contagious or infectious disease which makes his presence in Uganda

dangerous to the community.

20. Rwanda■ Law of 1963 concerning the immigration police and the conditions of entry and

stay (entered into force on 15th October)

Article 13

Any person, not being able to plead Rwandan citizenship and being in one of the situations

listed below, is considered as undesirable and may therefore not enter or reside in Rwanda;

(8) who is afflicted by one of the contagious diseases determined by ministerial decree.

21. Senegal■ Decree no 71-860 of 28 July 1971 concerning the conditions for the admission,

residence and establishment of foreigners

Article 1

In order to be allowed to enter Senegalese territory, every foreigner must present (…)

(c) the international vaccination certificates required by the health regulations.

22. Seychelles■ Immigration Decree of 1981, Chapter 93 (entered into force on 1st June)

Article 19

The following persons, not being citizens of Seychelles, are prohibited immigrants -

(a) any person who is infected or inflicted with or is a carrier of a prescribed disease and

who is capable or likely to become capable of infecting any other person with such disease or

of transmitting to him such disease.

First schedule

Section 15

5. The under-mentioned documents should be attached to this application (for a residence


permit) (…) a medical certificate from a medical practitioner to the effect that he finds you,

your spouse, your children and members of your household who are to reside with you (…)

not suffering from any infectious or contagious diseases.

23. Swaziland■ Immigration Act of 1995 (entered into force on 1st February)

Article 9

(1) Subject to the other provisions of this Act, the following persons are hereby declared to

be prohibited immigrants -

(b) a person who, if he entered Swaziland, would be likely to become or, having entered

Swaziland, has become a public charge by reason of infirmity of mind or body (…)

(d) a person who is infected or afflicted with, or suffering from, a prescribed disease, or who

is not in possession of a prescribed certificate of inoculation or vaccination against a

prescribed disease and is not able to show sufficient evidence of protection against that

disease by reason of previous attack of that disease, unless he has the written authority of an

immigration officer to enter and remain in Swaziland (…).

24. Tanzania■ Immigration Act of 1972 (entered into force on 12th May)

Article 6

6. Meaning of ‘prohibited immigrant’ (…)

(c) a person

(i) who refuses to submit to examination by a medical practitioner after having been

required to do so under the provisions of paragraph (c) of subsection (1) or section 5;

(ii) who is certified by a medical practitioner to be suffering from a contagious or infectious

disease which makes or which would make his presence in Tanzania dangerous to the public.

25. Tunisia■ Law no 68-7 of 8 March 1968 concerning the situation of foreigners in Tunisia

Article 18

The Secretary of State for the Interior may issue an expulsion order for any foreigner whose

presence on Tunisian territory constitutes a threat to public policy.


26. Zambia■ Immigration and Deportation Act of 1967 (entered into force on 21st February)

Article 22

Prohibited immigrants

(1) any person who belongs to a class set out in the Second Schedule shall be a prohibited

immigrant in relation to Zambia.

Schedule 2

Classes of prohibited immigrants

Class A. Persons capable of transmitting a prescribed disease

Any person who is infected or inflicted with or is a carrier of a prescribed disease and who is

capable or likely to become capable of infecting any other person with such disease or of

transmitting to him such disease.

27. Zimbabwe■ 1979 Immigration Act

Article 14

(1) Subject to the provisions of this Act, the following persons are prohibited persons -

(c) any persons who at the time of his entry into Rhodesia is likely to become a public charge

by reason of infirmity of mind or body (…)

(e) any persons who is infected or afflicted with or suffering from a prescribed disease,

unless he is in possession of a permit to enter and remain in Rhodesia issued upon conditions

fixed in the permit and complies with such conditions.

B. Asia28. Cambodia■ Immigration Law of 1994 (entered into force on 26th August)

Article 11

Those immigrants who have fulfilled the conditions mentioned in article 8 of this law shall be

allowed to stay in the Kingdom of Cambodia, but beside this they shall have to fulfil also the

following conditions:

(c) to have sufficient physical aptitude for performing their own professions, which proved

by medical certificates issued by doctors of the countries from which the persons have

emigrated (…).


29. China■ Specific regulations issued by the Minister of Public Health on 6 March 1989 to

implement the law of the People’s Republic of China concerning border health

controls and quarantine

Article 99

The health and quarantine organization must forbid any foreigner afflicted by AIDS, a

sexually transmittable disease, leprosy, psychiatric disturbances or pulmonary tuberculosis

from entering the country.

■ Regulation of 26 December 1987 on surveillance and control measures applicable

to AIDS

Article 5

Any foreigner travelling to China with a view to residing there permanently or staying there

for more than one year (or studying for more than one academic year) must, when applying

for an entry visa, present a certificate, delivered by a public hospital of his country or a

private hospital approved by an approved body in his country, certifying that he has

undergone serological screening for AIDS. This certificate must be approved by a Chinese

diplomatic mission or consulate and is valid for six months from the date of delivery. Where

applicable, foreigners who have not undergone serological AIDS screening in their own

country must, within 20 days of entering China, visit a specified specialist health institution

in order to undergo such testing.

Article 7

Foreigners resident in China may, if they turn out to belong to categories A or B as referred

to in article 2 of the present regulations (AIDS sufferers and persons infected by the AIDS

virus), receive orders from the public security department, based on a proposal by the local

health administration department, to leave the country immediately.

30. India■ The Foreigners Order 1948

Article 3

Leave to enter shall be refused if the civil authority is satisfied that:

(c) he (the foreigner) is suffering from a loathsome or infectious disease in consequence of

which, in the opinion of the Medical Officer of the port or the place of entry, as the case

may be, the entry of the foreigner is likely to prejudice public health.


31. Indonesia■ Presidential decree of 1994 concerning the national strategy for combating AIDS

in Indonesia

Article 7

Any HIV/AIDS diagnosis test must be preceded by an interview and the obtaining of the

enlightened consent of the party concerned (…)

32. Malaysia■ Immigration Act 959/63 of 1959 (entered into force on 1st May)

Article 8

(3) The following persons are members of the prohibited classes:

(b) any persons (…) suffering from a contagious or infectious disease which makes his

presence in Malaysia dangerous to the community;

(c) any person who refuses to submit to a medical examination after being required to do so

under section 39A(1).

33. Nepal■ Immigration rules, 1994

Article 28

(1) The Department may cancel visas issued to foreigners in the following circumstances:

(a) in the case (any foreigner) does not produce an international health certificate when

demanded (...)

(d) if he suffers from any serious or communicable disease.

34. Pakistan■ Foreigners Order of 1951 (entered into force on 26th October)

Article 3

Leave to enter shall be refused if the civil authority is satisfied that

(b) he is suffering from a loathsome or infectious disease in consequence of which, in the

opinion of the medical officer of the port or the place of entry, as the case may be, his entry

is likely to prejudice the public health.


35. Philippines■ Immigration Act of 1940 (entered into force on 26th August)

Article 29

The following categories of aliens shall be excluded from entry into the Philippines:

(2) persons afflicted with a loathsome or dangerous and contagious disease, as epilepsy.

Article 47

Notwithstanding the provisions of this Act, the President is authorized:

(5) to suspend the entry of aliens into the Philippines from any country in which cholera or

another infectious or contagious disease is prevalent.

36. Sri Lanka■ Immigrants and Emigrants Act of 1949 (entered into force on 1st November)

Article 11

(…) no endorsement or visa shall be granted or issued to any person who:

(b) is declared by a prescribed medical officer to be a person whom, for medical reasons,

it is undesirable to admit into Sri Lanka.

Article 31

The Minister may in any of the following cases make an order requiring any person to

whom this Part applies to leave Sri Lanka and to remain thereafter out of Sri Lanka:

(a) where that person is shown, by evidence which the Minister may deem efficient,

to be (…)

(iii) a person whom, for medical reasons, it is undesirable to allow to remain in Sri Lanka.

37. Syria■ Regulatory decree of the Health Minister no. 36/T of 26 October 1987

Under the terms of article 1 of the present decree, the systematic blood testing in order to

detect persons who are seropositive to HIV are limited to the following categories: (…)

b) foreign nationals domiciled in the Syrian Arab Republic for professional purposes, when

they make their first application for a work permit (persons domiciled in the Syrian Arab

Republic and not claiming any particular citizenship are exempted)

c) students coming from abroad to follow a training programme in a university establishment

or a college upon their arrival and at the time of their enrolment in these establishments

d) students studying abroad under bursaries, upon their return to the Syrian Arab Republic

and prior to their re-enrolment in the organization which granted them the study bursary.


38. Thailand■ Immigration Act of 1979 (entered into force on 31st May)

Article 12

No alien under any of the following descriptions shall be admitted into the Kingdom:

(3) being a person (…) afflicted with any one of the diseases as prescribed by the

Ministerial Regulation.

39. Turkey■ Passport Act of 1950 (entered into force on 24th July)

Article 8

Persons whose entry into Turkey is forbidden:

(2) Persons suffering from mental illness or contagious diseases. Nonetheless exemptions

from the present article may be made for persons whose state does not constitute a danger

for public health and safety, who arrive under their own resources or with the financial

assistance of their tutor or guardian in order to undergo medical or other treatment.

■ Law of 1950 concerning the residence and travelling of foreigners in Turkey

(entered into force on 21st July)

Article 7

Residence permits are not granted to foreigners (…):

(e) who disturb the public policy whilst in Turkey.

40. Vietnam■ Ordinance of 1992 on the exit, entry, residence and travel of foreigners in

Vietnam (entered into force on 1st May)

Article 6

An application for an entry visa or entry-exit visa may be refused in the following cases:

(3) for reasons of (…) preventing and combating epidemic diseases.

Article 14

A foreigner may be expelled from Vietnam if he falls into one of the following categories:

(4) being himself a hazard to the life or health of others in Vietnam.

■ Ordinance of 31 May 1995 on the prevention and control of HIV/AIDS

Article 19

Foreigners infected by HIV/AIDS must declare themselves on entering Vietnam. The

declaration procedure will be stipulated by the government.


■ Governmental decree no. 16/CP of 18 December 1992 regulating certain aspects

of the measures of prevention and of the campaigns against the infection by HIV

and against AIDS.

Article 9

Foreign nationals registered as residents in Vietnam for a period longer than three months

must in any event undergo serological testing in order to detect anti-HIV antibodies.

Article 15

Any foreign national who, upon entry into Vietnam, knows himself to be living with AIDS

must declare this. No foreign national infected with HIV or living with AIDS is authorized

to marry a Vietnamese citizen.

C. South and Central America41. Argentina■ Decree 1023/94 of 29 June 1994 approving the immigration regulation

Article 21

Foreigners belonging to one of the following categories are absolutely not eligible to be

admitted to and/or stay in the country in any category of migrants, except for those which

are expressly excepted:

(a) those who are affected by transmittable diseases in such a way as to be presumed to

represent a danger to the health of the community. The presumption of this danger will be

determined by the national health authorities or the authority to which it delegates.

Article 22

Foreigners belonging to one of the following categories are relatively not eligible to be

admitted as permanent or temporary residents:

(a) those having congenital or acquired physical or mental disability, or a chronic disease

which partially reduces their ability to work (…)

Article 39

(…) Foreigners who are granted permission to enter as permanent or temporary residents in

order to obtain the respective visa, must present themselves to the Argentine consular

authority (…)

(e) A certificate delivered by a medical practitioner or a health authority recognized to for

this purpose establishing his physical and mental condition;


Article 44

Foreigners who are in the national territory and who petition the immigration authority to be

admitted to the country as permanent or temporary residents must present (…)

(d) a medical certificate delivered by the immigration medical authority or another official

health authority giving the foreigner’s physical and mental condition.

42. Bahamas■ Immigration Act of 1967 (entered into force on 2nd November)

Article 19

(1) Subject to the provisions of this Act an Immigration Officer may grant leave to any

person to land and remain in the Colony for such period as he may determine in

accordance with the provisions of subsection (2) of this section, upon being satisfied that

that person:

(e) is not suffering from any contagious or infectious disease which, in the opinion of a

medical practitioner appointed in accordance with the provisions of paragraph (d) or section

6(1) makes his presence in the Colony dangerous to the community.

43. Barbados■ Immigration Act of 1976 (entered into force on 2nd February)

Schedule 1

Prohibited persons

1. Persons suffering from communicable diseases within the meaning of any regulations

relating to such diseases made under the Health Services Act.

44. Belize■ Immigration Ordinance of 1 January 1958

Article 4

Categories of prohibited immigrants (…):

(a) any person who is likely if he entered Belize to become a charge on public funds by

reason of infirmity of body or mind (…).

(b) any person certified by a medical practitioner to be suffering from a communicable

disease which makes his entry into Belize dangerous to the community.


45. Bolivia■ Resolution no. 0660 of December 1996 for the prevention and surveillance of

HIV/AIDS in Bolivia

Article 45

It is forbidden to demand serological tests for determining HIV infection as a mandatory

prerequisite in the following circumstances (…)

d) the entry into the country of foreign and national citizens.

47. Chile■ Decree-law no. 1.094 of 1975 establishing the laws concerning foreigners in

Chile

Article 15

The following foreigners are forbidden to enter the country:

4) those suffering from diseases which the Chilean health authority considers as an

impediment to entering the national territory.

48. Colombia■ Decree no 2731 of 27 December 1996 governing in a general fashion the delivery

of visas, the control of foreigners and establishing other provisions in the matter

of immigration

Article 5

Immigration is regulated according to (…) health needs.

article 19, paragraph 4

Persons applying for a visa, except for the exceptions provided for in this Decree, must

attach (…)

(3) the items required for the visa being applied for

(4) a medical certificate where this is required for health reasons by the Ministry of

Foreign Affairs.

Article 166

No foreigner may enter the national territory if he is in one of the following situations:

(1) suffering from a infectious-contagious disease (…).


49. Costa Rica■ Decree no. 20202-S-G of 17 January 1991

The present decree expressly repeals Executive Decree no. 18452-S of 19 September 1988

containing detailed provisions relating to treatment administered to persons living with AIDS

and Executive Decree no. 18781-S-G of 19 January 1989 containing provisions

concerning the screening which certain categories of foreign nationals resident in Costa Rica

must undergo.

50. Cuba■ Ministerial resolution no. 144 of 11 June 1987

(1) All foreign bursary students or other non-Cuban personnel coming to reside in Cuba for

periods longer than three months must, upon arrival or upon the order of the health

authorities undergo serological testing for detecting HIV (the agent causing AIDS).

(2) Any foreign national who proves seropositive to said virus must be sent back to the place

he came from (country of origin or other country).

51. Dominican Republic■ Law 4471 of 3 June 1956, public health code

Article 108

Every immigrant will be required to undergo a full medical examination before being allowed

to enter the country. In no event will persons affected with transmittable diseases (…) be

allowed to remain in the country.

52. Ecuador■ Law no 1899 of 1972 on immigration (entered into force on 2nd March)

Article 9

Except where provision is made in other legal dispositions, foreigners outside the country

contained in the following categories are not eligible for visas and must be excluded if they

apply for admission to enter the country:

(VII) Those suffering from diseases qualified as serious, chronic and contagious, such as

tuberculosis, leprosy, tracoma and other similar diseases not subject to quarantine.


53. Jamaica■ Aliens Act of 1946

Article 6

Leave shall not be given to an alien to land in the Island unless he complies with the

following conditions, that is to say:

(d) he is not the subject of a certificate given to the immigration officer by a Health Officer that

for medical reasons it is undesirable that the alien should be permitted to enter the country.

54. Mexico■ General Population Act of 1992

Article 37

The Government Secretary may refuse entry to the country or a change in immigrant status

for one of the following reasons:

(VII) the person in question in not physically or mentally healthy in the judgement of the

health authority.

Article 62

In order to enter the Republic, foreigners must meet for following conditions:

(I) Present an official certificate of good physical and mental health delivered by the

authorities of the countries from which they have come in the cases established by the

Government Secretary.

(II) Be approved in the examination undertaken by the health authorities

Regulation of 1992 implementing the General Population Act (entered into force on

30th September).

Article 57

The Secretary may, in the following circumstances, by virtue of particular elements, refuse

foreigners entry, return, or a change in immigrant status (…):

(IV) when the health authority informs the immigration authority that the foreigner is

suffering from any infectious-contagious disease which presents a danger to public health.


55. Nicaragua■ Immigration Act no. 153 of 1993 (entered into force on 30th May)

Article 57

In order to be admitted as a permanent or temporary resident, the foreigner, upon entry into

the country (…) must present:

(…) a medical certificate delivered by the health authority of the country of origin or the

country he has come from.

Article 60

In order to be admitted as non-residents, foreigners (…) must present, upon entry into the

country:

(…) a medical certificate delivered by the health authority of the country of origin or the

country he has come from.

■ Law no. 154 of 1993 on foreigners (entered into force on 2nd June)

Article 4

Foreigners in the following categories will not be admitted to the country as permanent or

temporary residents:

(a) those suffering from an infections-contagious or transmittable disease which presents a

danger to public health.

Article 5

Foreigners in the non-resident category will not be admitted to the country when their entry

constitutes a danger to public health (…).

56. Panama■ Law no. 26 of 17 December 1992 giving measures for the prophylaxis and

control of the acquired immuno-deficiency syndrome (AIDS) and the spread of

the human immuno-deficiency syndrome (HIV)

Article 20

Any foreigner intending to enter the Republic of Panama as a permanent resident or intending

to remain for more than one year should, upon, entry to the national territory, present along

with his visa a medical certificate delivered by a public or private hospital, approved by the

minister of health or a body charged with directing health policy in his country of origin, which

states that he has undergone screening for the antibodies of the human immuno-deficiency

virus with a negative outcome. If outcome is positive, entry to the country is refused.


58. El Salvador■ The Health Code (promulgated by Decree no 955 of 11 May 1988)

Article 164 requires every traveller entering Salvadorian territory to present, to the

appropriate health authority, valid international vaccination certificates or other certificates

of serological examinations regarding the diseases specified by the ministry (…) Immigrants

are also required to submit to the medical examination as required by the health authority in

order to confirm, if the latter considers this useful, the medical certificates obtained in their

countries of origin, and duly certified as being in conformity by the Salvadorian consular

authorities, based on clinical, X-ray and laboratory examinations attesting that the persons

in question are not afflicted by or carriers of transmittable diseases.

59. Trinidad and Tobago■ 1980 Immigration Act

Article 8

Except as provided in subsection (2), entry into Trinidad and Tobago of the persons

described in this subsection, other than citizens and, subject to section 7(2), residents, is

prohibited, namely:

(c) persons afflicted with any infectious or dangerous infectious disease.

D. South Sea Islands62. Papua New Guinea■ Migration Act of 1978 (entered into force on 12th September)

Article 9

1. Notwithstanding the possession of an entry permit, a person, other than a citizen may,

on arrival at the country or on reporting to an officer in accordance with Section 10(1), be

refused entry if:

(b) he is, in the opinion of an officer, suffering

(ii) from a disease which would make his presence in the country a danger to the

community; or

(c) he refuses to submit to a medical examination after being required to do so under

Subsection (2).

2. An officer may, for the purposes of forming an opinion under Subsection (1)(b), require

a person seeking to enter the country to submit himself to a medical examination by a

medical practitioner, or may detain him for that purpose.


Article 22

Repatriation

If the Minister is satisfied that a person, other than a citizen:

a) is destitute, infirm or mentally incapable.

63. Western Samoa■ Health Ordinance 1959

Article 29

Special powers of Director – The Director may from time to time, if authorized in writing so

to do by the Minister, exercise the following special powers for the prupose of preventing the

outbreak or spread of any infectious disease:

e) He may require persons to report themselves or submit themselves for medical

examination at specified times and places.

64. Tonga■ Act no. 16 of 1969 on Immigration

Article 5

(…) any immigration officer may:

d) require any person who desires to enter the Kingdom to submit to be examined by a

Government medical officer, and to undergo, and to assist in the carrying out of, any test or

investigation which such Government medical officer may require.

Article 8

Prohibited immigrants:

d) any person

i) who refuses to submit to an examination by a Government medial officer after being

required to do so under the provisions of section 5(1)(d) of this Act, or to undergo, or to

assist in the carrying out of, any test or investigation which such medical officer may require;

ii) who at the time of his entry into the Kingdom is certified by a Government medical

officer to be suffering from a contagious or infectious disease which makes his presence in the

Kingdom dangerous to the community.


E. Central Europe65. Albania■ Immigration Law no. 7939 of 25 May 1995

Article 10

To persons who request a permission to enter or stay in the Republic of Albania and who

meet the requirements defined in this law, this permission can be denied if the Minister of the

Interior, himself, decides that their exclusion is imperative for the sake of public policy,

public security or health security reasons.

(…) The list of diseases and other cases which legitimate the denial of entry permission, is

contained in the regulations established for the implementation of this law.

66. Bulgaria■ Decree no. 4 of 2 April 1992 on the conditions and the procedures applicable to

the testing of the infection by the Acquired Immuno-Deficiency Syndrome virus

Article 2

The following must undergo compulsory screening for infection by HIV:

(6) foreign nationals and stateless persons coming to stay for more than one month in

Bulgaria in order to study or for professional purposes, as well as immigrants, regardless of

the length of their stay.

67. Hungary■ Act LXXXVI of 14 September 1993 on the entry, residence, and immigration of

aliens to Hungary

Article 15

2. (…) and the application for a residence permit shall be supplemented by an official

medical certificate showing that the alien does not suffer from a disease endangering

public health.

Article 16

Issue of the residence permit or the extension of the period of residence may be denied if

the alien:

(c) during his residence in Hungary does not observe the rules of Hungarian public health

regulations in force.


Article 19

1. To the application (for an immigration permit) shall be appended:

(d) an official medical certificate issued not earlier than three months, certifying that the

alien does not have a disease dangerous to public health.

Article 23

Prohibitions from entry and stay may be ordered against the alien:

(e) whose entry and stay would in any other way violate or endanger national security,

public safety, the economic order, public health or the human environment.

68. Poland■ Law of 1963 on foreigners (entered into force on 29th March)

Article 17

When issuing a decision to place a foreigner under arrest before expulsion the foreigner’s

condition of health and family situation must be taken into consideration (…)

70-71. Czech Republic and Slovakia■ Act no. 123/1992 of 4 March 1992 governing the stay and residence of

foreigners in the Czech and Slovak Republic

Article 8

A foreigner is obliged, upon request, to enclose with his application for the granting of a long-

term residence permit or permanent residence permit, or with his application for an extension

of the period of time stated in his long-term residence permit (…) evidence (…) that he does

not suffer from any infectious disease, the spreading of which is punishable by law.

Article 14

A foreigner may be prohibited from residing in the CSFR for a period of no less than one

year in the following cases:

(e) if it is unavoidable for the protection of health.

Czech Republic

■ Guidelines of March 1992 and instructions on prevention and treatment

of HIV infection

Article 2

Testing for HIV is voluntary and, in the case that the person tested or his legal

representative (…) so desires, it is anonymous. Testing is not anonymous (…) in the case


of refugees, when a condition of their placement in a refugee camp includes consent to an

examination and HIV testing upon arrival, or when persons travel to a State which requires

HIV testing before entering the territory.

Slovakia

■ Law of 5 April 1995 on the residence of foreigners on the territory of Slovakia

Article 12

A foreigner is denied permission to enter or stay in the territory of the Slovak Republic if:

(i) it is necessary for state security, keeping the public policy, protection of health (…).

F. Former Yugoslavia73. Croatia■ Act of 1991 on the movement and residence of foreigners (entered into force on

8th October)

Article 18

A request for issuing a visa to an alien will be rejected if:

8. he is coming from a territory where there is an epidemic of contagious disease, and with

no vaccination certificate.

■ Presidential decree no. PA4-71/92 of 25 September 1992 promulgating the law

concerning the protection of the population against transmittable diseases

Article 60

In order to protect the Croatian Republic against the introduction of contagious diseases,

when crossing the border Croatian nationals are subject to a medical control (…).

Article 62

(…) In the application of this control, the management bodies who are responsible for the

health inspection are authorized to:

1. forbid the circulation of persons who are known to be afflicted by, or who might possibly

be afflicted by particular contagious diseases.


74. Macedonia■ Law of 1992 on the movement and residence of foreigners (entered into force

on 8th June)

Article 17

An alien would be refused admission in the Republic of Macedonia, respectively the

issuance of a visa, should:

(…) he/she be coming from an area infected by contagious diseases and is not in possession

of a vaccination certificate.

Article 30

An alien residing on the territory of the Republic of Macedonia (…) or who has been

granted approval for temporary residence, may be denied the right to residence, should

(…) matters of public health protection be concerned.

75. Slovenia■ Alien’s Act of 1991 (entered into force on 25th June)

Article 10

Foreigners may be denied entry to the state – denied visas – for the following reasons;

(…) if he/she is coming from an infected area (danger of spreading infectious diseases) and

can present no vaccination certificate.

Article 23

Residence may be cancelled to any foreigner residing in the territory of the Republic of

Slovenia on the basis of a foreign passport, a valid visa/entry permit, or conforming with

international agreements or possessing a valid temporary residential permit for one of the

following reasons:

(…) securing people’s health.

G. Community of Independent States78. Belarus■ Law of 3 June 1993 on the legal status of aliens and stateless persons in the

Republic of Belarus

Article 20

Aliens and stateless persons may be denied entry to the Republic of Belarus:

(2) in the interest of (…) the health of inhabitants.


Article 25

Aliens and stateless persons may be deported from the Republic of Belarus:

1) if it is necessary for the protection of health (…)

■ Law of 18 June 1993 on public health

Article 27

Foreign nationals and stateless persons who refuse an examination for the purpose of

detection by the human immuno-deficiency virus (AIDS) or prophylactic observation, may

be expelled from the Republic of Belarus, in accordance with the procedure provided for by

the legislation of the Republic of Belarus.

79. Estonia■ Regulation of 21 September 1993 for the issue and extension of residence permits

and employment permits to aliens

Article 22

The alien shall submit the following documents to the foreign representation to apply for

a residence and employment permit:

6) medical certificate, for which the standard shall be confirmed by the Ministry of

Social Affairs.

80. Georgia■ Law of 21 March 1995 on the prevention of HIV/AIDS

Article 4

Foreign citizens arriving in Georgia for more than one month (excluding those possessing

diplomatic privileges and immunities) should possess a certificate to certify HIV/AIDS

examination. In the case of not having such a certificate these persons should undergo

HIV/AIDS medical examination according to the established rules.

■ Immigration Act of 27 July 1993

Article 4

A foreigner may be denied immigration to the Republic of Georgia:

4) if he has AIDS (…).


■ Law of 3 June 1993 on the legal status of aliens in Georgia

Article 29

Aliens, as well as stateless persons, temporarily residing in the Republic of Georgia, may be

deported from the Republic of Georgia if (…):

d) this is necessary for the protection of health.

81. Kazakhstan■ Law of 5 October 1994 on the prevention of AIDS

Article 6

The citizens of the Republic of Kazakhstan, foreign nationals and stateless persons are

required to undergo a medical examination where sufficient reasons exist to presume that

they are infected by the human immuno-deficiency virus (…). Foreign nationals residing in

the territory of the Republic of Kazakhstan who refuse to undergo an examination or a

prophylactic observation or who are infected by HIV or are living with AIDS are expelled

outside the frontiers of the Republic of Kazakhstan. Foreign nationals whose spouse is a

citizen of the Republic of Kazakhstan are not expelled.

82. Kyrghyzistan■ Law of 14 December 1993 on the order for residence of aliens in the Kyrghyz

Republic

Article 24

An alien may be deported from the Kyrghyz Republic:

2) if it is necessary for the protection of health (…).

83. Latvia■ Law of 9 June 1992 on the entry and residence of foreign citizens and stateless

persons in the Republic of Latvia

Article 35

Residence permits shall not be issued if a person suffers from an illness or health conditions,

the nature, severity and potential duration of which threatens the security and health of

society or requires the special supervision of health institutions, and those illnesses and

health conditions which are mentioned in the list confirmed by the Republic of Latvia

Welfare Ministry.


84. Lithuania■ Immigration Act of 4 September 1991

Article 5

A foreigner may not be issued a permit to immigrate into the Republic of Lithuania if he or she:

1. is afflicted with a dangerous contagious disease.

■ Law of the Republic of Lithuania on the legal status of foreigners in the Republic

of Lithuania

Article 27

A foreigner may not be permitted to enter the Republic of Lithuania if:

2) his entry poses a threat to (…) health (…).

85. Moldova■ Law of 10 November 1994 on the legal status of aliens and stateless persons in

the Republic of Moldova

Article 8

(…) 2. Aliens and stateless persons shall be obliged to undergo medical screening in order to

reveal HIV-infection or AIDS.

Article 23

Aliens and stateless persons may be deported from the Republic of Moldova if (…)

(2) the stay in the Republic damages (…) health.

■ Law of 25 May 1993 on the prevention of the illness HIV/AIDS

Article 3

Citizens of the Republic of Moldova, foreign citizens and stateless persons who reside or who

are staying temporarily in the territory of the Republic of Moldova are required, according to

a decision taken by the health organizations and the medical institutions, to pass a medical

examination, where there are well-founded reasons for suspecting these persons of having

been infected by the human immuno-deficiency virus.

Article 5

Foreign citizens and stateless persons having temporary residence in the Republic of

Moldova and who refuse to take the medical examination will be expelled from the Republic

in accordance with the legislation in effect.


Article 11

Access to the territory of the Republic of Moldova is forbidden to foreign citizens and

stateless persons coming from other countries and infected by the HIV virus or who are

living with AIDS. Access to the territory of the Republic of Moldova for more than three

months is permitted solely to persons presenting a medical certificate proving that they have

tested negative for AIDS. Persons not passing the above-mentioned test are required to

present themselves within 10 days of their arrival in the Republic of Moldova, to the

institution in question, in order to pass an AIDS screening examination. This procedure will

be repeated once a year thereafter.

Article 12

Foreign citizens and stateless persons having temporary residence in the Republic of

Moldova and who are found following medical examination to be carriers of the HIV virus

(AIDS disease) are expelled from the country.

86. Mongolia■ Decree no 103 of 26 June 1989 of the Presidium of the Grand Khural of the

Mongolian People’s Republic on measures to prevent Acquired Immuno-

Deficiency Syndrome

Article 1

Any citizen of the Mongolian People’s Republic must undergo medical examinations and

screening which are required by a health care establishment in order to determine whether he

is infected with HIV. This provision applies equally to any foreigner of stateless person who

is in the Mongolian People’s Republic.

Article 3

The provisions of article 29 of the law concerning the rights and duties of foreigners who are in

the Mongolian People’s Republic are applicable to foreigners who are in the Mongolian People’s

Republic and who refuse to undergo medical examination and screening intended to determine

whether they are infected by HIV or whose infection with HIV has been confirmed.

■ Law of 1 March 1994 on the prevention of the Acquired Immuno-Deficiency

Syndrome

Article 12

Any foreigner national or stateless person infected by HIV or living with AIDS and who

refuses to conform to the instructions of the responsible health authorities must be expelled in

accordance with Mongolian legislation.


87. Uzbekistan■ Resolution no. 12 of 17 November 1992 introducing preventive measures against

the introduction and the spread of quarantinable diseases and of AIDS into the

Republic of Uzbekistan.

Article 1 requires the ministers and other specified organizations:

(7) to forbid the presence in the territory of the Republic of Uzbekistan of persons from

countries where AIDS is widespread (Africa: Burundi, Congo, Ghana, Guinea Bissau,

Ivory Coast, Kenya, Malawi, Mozambique, Rwanda, Sierra Leone, United Republic of

Tanzania, Zaire, Zambia and Zimbabwe. America: Brazil, Martinique, Mexico and the

United States of America. Europe: Belgium, France, Germany, Great Britain, Italy,

Netherlands, Spain, Sweden and Switzerland, if they do not hold a certificate certifying that

they have undergone screening for the antibodies of the human immuno-deficiency virus

(HIV). Persons holding such a certificate at the time of their entry into the Republic of

Uzbekistan but who prolong their stay for more than one month from their arrival must

undergo a new AIDS screening test at the place of stay.

(8) to deport immediately foreign nationals who turn out to be living with AIDS or

HIV carriers.

88. Russia■ Federal Law of 15 August 1996 on the procedure for exit from the Russian

Federation and entry into the Russian Federation

Article 27

Foreign citizens or stateless persons shall be denied entry into the Russian Federation

where (…):

4) they apply for a Russian visa for more than a three-month period and did not present

a certificate on the lack of HIV-infection, until submission of such certificate.

■ Federal law no. 38 of 30 March 1995 on the prevention of the spread in the

Federation of Russia of the affection caused by the Human Immuno-deficiency

Virus (HIV infection)

Article 11

2. In the event that HIV infection is found in foreign nationals or stateless persons who are

in the territory of the Russian Federation, said persons must be expelled from the Russian

Federation in accordance with the procedure for which provision is made in the legislation of

the Russian Federation.


89. Tajikistan■ Law of 1 February 1996 on the legal status of aliens in the Republic of Tajikistan

Article 31

An alien may be deported from the Republic of Tajikistan:


90. Turkmenistan■ Law of 8 September 1993 on the legal status of aliens in Turkmenistan

Article 31

An alien may be deported from Turkmenistan:


■ Regulation of 7 June 1995 on HIV/AIDS testing in Turkmenistan

Article 2 defines the categories of persons subject to HIV screening. These include (…) foreign

nationals and stateless persons requesting a medical consultation, in accordance with clinical

indications (…).

91. Ukraine■ Law of 4 February 1994 on the legal status of aliens

Article 25

(…) An alien shall not be allowed to enter the Ukraine

- if it is necessary for the protection of health (…).

Article 32

An alien may be deported from the Ukraine (…) if (…) it is necessary for the protection of

health (…).

■ Law of 12 December 1991 on the prevention of AIDS and the social protection

of the population

Article 8

Nationals of other States and stateless persons staying in Ukrainian territory to study or

exercise an activity are subject to a compulsory medical examination in order to detect HIV

infection. Persons in possession of the certificate for which provision is made by an appropriate

agreement between the Ukraine and other State are dispensed from the examination (…).

Article 12

Nationals of other States and stateless persons infected with HIV are subject to an

administrative expulsion in accordance with the fixed legal procedure. Foreign nationals and

stateless persons whose spouse is a Ukrainian citizen are not subject to expulsion.

The free movement of persons living with HIV/AIDS – Annexe III (2): Third countries, Summary table 307

(2) Summary table

KeyThe table summarizes the situation in various third countries studied from the viewpoint

of legislation allowing certain limits to the free movement of persons living with

HIV/AIDS.

The numbers in parentheses refer to the paragraph numbers in the text.

The countries and numbers in bold face indicate the existence of restrictions on the


A mention in italics followed by (+) to signify ‘affirmative action’ is given to those

countries which, by legislation, or more often by general policy declarations, have

indicated that they are opposed to screening at their borders and/or to restrictions on the


Some countries are in bold face and italics as they belong to the two categories.

Most of the countries are printed in normal roman type. This means that, for those

countries, no particular legislation or practise against or in favour of the free movement of

persons living with HIV/AIDS were reported. It is possible that some of those countries

use the general legislation relating to migration against persons living with HIV/AIDS.

Moreover, on the one hand it should not be excluded that other states practise

restrictions or, vice versa, adopt affirmative action which we have not become aware of,

and on the other hand it is not impossible that the states mentioned in bold face have

decided to remove the restrictions applied to the free movement of persons living with

HIV/AIDS.

The aim is not to condemn or stigmatize the states mentioned in bold face or to

congratulate those mentioned in italics. The aim is to draw attention to the situation of

persons living with HIV/AIDS, with regard to their freedom of movement.

308 The free movement of persons living with HIV/AIDS – Annexe III (2): Third countries, Summary table

COUNTRY ENTRY RESIDENCE-EXPULSION

I. AFRICA

1. South Africa GL- RP (258) GL – RP (259, 260)

2. Angola GL (261) GL (262) – P (263)

3. Botswana GL (265) GL (266 et 267)

4. Burkina Faso IHR (268) GL (270)

5. Burundi GL (271) GL (272)

6. Cameroon GL (274) GL (275)

7. Ethiopia GL (276) GL (277)

8. Gabon GL (278) GL (279)

9. Gambia GL (281) GL (282)

10. Equatorial Guinea IHR (283) GL (284)

11. Kenya (+) GL (286) GL (287)

12. Lesotho GL (288) GL (289)

13. Madagascar IHR (290) GL (291)

14. Malawi GL (293) GL (294 and 295)

15. Mali GL (297) GL (298)

16. Namibia (+) GL (299 and 301) GL (303)

17. Nigeria GL – R (305) GL (306)

18. Oman P (308) PLA (309)

19. Uganda (+) GL (310) GL (311, 312)

20. Rwanda IHR – GL (313) GL (314)

21 Senegal IHR (315) GL (316)

22. Seychelles GL (318) GL (319) – P (320)

23. Swaziland GL (323) GL (324)

24. Tanzania GL (325) GL (326)

25. Tunisia GL (328) GL (329 and 330)

26. Zambia GL (331) GL (332 and 333)

27. Zimbabwe GL – P (334) GL (335)

II. ASIA

28. Cambodia GL (337) GL (338 et 339)

29. China PLA (341) PLA (343 and 344)

30. India GL (345) P (346)



31. Indonesia (+) GL (349) P (351 and 352)

32. Malaysia GL (353) P (354 and 355)

33. Nepal GL (357) IHR – L (358)

34. Pakistan GL (359) GL (360) – P (361)

35. Philippines GL (362) PLA (364)

36. Sri Lanka GL – P – R (365) GL (366)

37. Syria PLA (368) PLA (369 to 371)

38. Thailand RP (372) RP (373)

39. Turkey GL (375) GL (376 and 377)

40. Vietnam PLA (379) PLA (381 to 383)

III. CENTRAL AND SOUTH AMERICA

41. Argentina GL – P (384) GL (385)

42. Bahamas GL – P (388) GL (389)

43. Barbados GL (390) GL (391)

44. Belize GL (392) P (393)

45. Bolivia (+) PLE (394) PLA (395)

46. Brazil GL (396) GL (397)

47. Chile GL (398) P (399)

48. Colombia GL (400 and 402) GL – P (401)

49. Costa Rica RP (403) RP (404)

50. Cuba PLA (405 and 406) PLA (407)

51. Dominican Republic GL (408) P (409)

52. Ecuador GL (410) GL (411)

53. Jamaica GL – IHR (412) GL (413)

54. Mexico GL (414) P (415)

55. Nicaragua GL (416) GL (417)

56. Panama GL (418) PLA (419)

57. Peru GL (420) RP (421)

58. El Salvador IHR – GL (424) P (425)

59. Trinidad and Tobago GL (426) GL – P (427)

60. Venezuela GL (428) P (429) – GL (430)

310 The free movement of persons living with HIV/AIDS – Annexe III (2): Third countries, Summary table


IV. SOUTH SEA ISLANDS

61. Fiji GL (431) GL (432)

62. Papua New Guinea GL (433) P (434)

63. Samoa P (435) GL (436) – P (437)

64. Tonga GL (439) GL (440)

V. CENTRAL EUROPE

65. Albania GL – IHR (441) GL (442)

66. Bulgaria GL (445) PLA (448) – GL (449)

67. Hungary GL (451) GL – P (452)

68. Poland GL (453) GL – P (454)

69. Romania GL (456) GL (457)

70. Slovakia GL (458) GL – P (459)

71. Czech Republic LPA (462) GL (463) – P (464)

VI. FORMER YUGOSLAVIA

73. Croatia GL (467) GL (468) – IHR (470)

74. Macedonia GL (473) GL (474)

75. Slovenia GL (477) GL (478)

VII. CIS

77. Armenia GL (483) GL (484)

78. Belarus GL (485) GL – PLA (486)

79. Estonia GL (488) GL – PLA (489)

80. Georgia PLA (490) PLA (492) – GL (494)

81. Kazakhstan GL (495) PLA (499 and 500)

82. Kyrghyzistan GL (501) GL (504)

83. Latvia GL (505) GL (506) – P (506)

84. Lithuania GL (508) GL – P (509)

85. Moldova PLA (511) PLA (512 and 513)

86. Mongolia PLA (514) PLA (515)

87. Uzbekistan PLA (516) PLA (517)

88. Russia PLA (519) PLA (520 and 482)

89. Tajikistan GL (522) GL (523 and 524)

90. Turkmenistan GL (527) PLA (530) – GL (531)

91. Ukraine GL (533) PLA (535 and 536)


Key

GL No particular legislation. Application of general immigration legislation which can

contain restrictions relating to public policy and public health.

PLA Particular legislation authorizing AIDS screening

PLE Particular legislation excluding AIDS screening

P AIDS screening practised

RP Special legislation authorizing AIDS screening has been repealed

IHR Application of international health regulations or WHO policy

R Restrictions may exist on a reciprocal basis

312 The free movement of persons living with HIV/AIDS – Annexe IV (1): Bibliography, AIDS

Annexe IV. Basic bibliographyOnly the works, studies and articles specifically used for this study are included in this

bibliography, because they concern AIDS and the right to free movement of persons.

To make things easier, the bibliography is divided between these two problems, even if

certain works concern both. For a more complete bibliography of every aspect of this

double problem – free movement and AIDS – the references in this bibliography can

be used.

Two basic references for health and migration legislations:

– WHO (World Health Organization), International Digest of Health Legislation,

Geneva.

– UNHCR (United Nations High Commissioner for Refugees), Refworld, CD Rom,

Geneva, January 1998 (also on Web: http://www.unhcr.ch).

(1) On AIDSAFRICAN NETWORK ON ETHICS, LAW AND HIV, Proceedings of the intercountry

consultation, Dakar, Senegal, 27 June-1st July 1994, UNDP, Dakar, 1996.

AGADZI, VK, AIDS-the African perspective of the killer disease, Ghana Universities, Press

Accra, 1989.

AIDES,

– Droit et sida, guide juridique, 3e édition, Paris, LGDJ, 1996.

– Dix ans d’existence, dix ans de résistance, 7es Assises nationales, Paris,

23-25 septembre 1994.

ALKAS, P.H. and SHANDERA, W.X, ‘HIV and AIDS in Africa, African policies in

response to AIDS in relation to various national legal traditions’, The Journal of Legal

Medicine, 1996, p. 527.

ARCAT, Sida, VIH et vacances, Paris, 1996.

BINDMAN, G., ‘Extending anti-discrimination law to AIDS and HIV’, N.L.J., 1996,

p. 62.

BREUM, M. and HENDRIKS, A., AIDS and human rights: an international perspective,

Copenhagen, Akademisk Forlag, 1988.

Bulletin du réseau africain sur l’éthique, le droit et le VIH, PNUD, Sénégal.

CAMERON, E., ‘Human rights, racism and AIDS: the new discrimination’, South African

Journal on human rights, 1993, p. 22.

The free movement of persons living with HIV/AIDS – Annexe IV (1): Bibliography, AIDS 313

CATTORNI, P., MORELLI, D., ZANCHETTI, M., AIDS, comparison and analysis of

European Legislation on AIDS from ethical and legal standpoint, Italy, Istituto Scientifico

H. San Raffaele, 1996.

COLLECTIVE,

– Sida’venture, sida, éthique, discriminations, Paris, Editions Syllepse, 1989.

– AIDS in Asia and the Pacific Conference, Canberra, Australia, official proceedings

document, 5-8 August 1990.

– HIV law, ethics and human rights, New-Delhi, UNDP, 1995.

CONSEIL NATIONAL DU SIDA (France), Rapport suivi d’un avis du conseil national du

sida sur la situation des personnes atteintes par le VIH de nationalité étrangère et en

irrégularité de séjour, Paris, décembre 1995.

DECOSAS, J., ‘Migration et sida en Afrique de l’Ouest’, Le journal du sida, juin-juillet

1996, n° 86-87.

DÉPARTEMENT FÉDÉRAL DES AFFAIRES ÉTRANGÈRES (Switzerland), Tableau

récapitulatif des dispositions prises par certains pays envers les voyageurs internationaux

concernant les tests de dépistage des anticorps anti-HIV (sida), Berne, 17 February 1997.

DEPARTMENT OF HEALTH (SOUTH AFRICA), Guidelines for the management of

patients/sick passengers with a (suspected) communicable disease entering South Africa,

March 1997.

DE SCHUTTER, O., ‘Épidémie de sida et droits de l’homme’, Revue trimestrielle des droits

de l’homme, 1994, p. 59.

EUROCASO, Report of the first seminar on law and HIV/AIDS, Amsterdam, 13-14 avril

1991.

EUROPEAN CENTRE FOR THE EPIDEMIOLOGICAL MONITORING OF AIDS,

HIV/AIDS surveillance in Europe: 1994-1996, Quarterly Report n° 42, 30 June 1994.

European Commission,

– The European Union in the global response to HIV/AIDS in developing countries.

– Les Européens et le sida, Enquête eurobaromètre 43.0 et 43.1, Luxembourg, 1996.

– Community action programme ‘Europe against AIDS’, Directory of the actions

implemented in 1995.

FEUILLET – LE MINTIER, B. (sous la direction de), Le sida, aspects juridiques, Paris,

Economica, 1995.

FIGUEIRA, M., ‘AIDS, the Namibian Constitution and human rights, an overview’,

South African Journal on human rights, 1993, p. 30.


FINE, D., HEYWOOD, M. and STRODE, A. (Ed.), HIV/AIDS and the law, published by

the AIDS law project and lawyers for human rights, South Africa, 1997.

FOYER, J. et KHAIAT, L., Droit et sida, comparaison internationale, Paris, CNRS Editions,

1994.

FRANSEN, L. and WHITESIDE, A. (Ed.), HIV/AIDS and development assistance,

Workshop proceedings, Brussels, 13 June 1996.

FUENZALIDA-PUELMA, H., LINARES PARADA, A. y SERRAMO LA VERTU, D.,

Aportes de la ética y el derecho al estudio del sida, Organizacion panamericana de la

salud, 1991.

GEVERS, S., ‘Population Screening: The role of the law’, European Journal of Health Law,

1998, p. 7.

GILMORE, N., ‘Medical and political aspects of travel for HIV-Positive’, in Travel

Medicine 2, proceedings of the second conference on international travel medicine, Atlanta,

Georgia, USA, May 9-12, 1991, p. 207.

GOSTIN, L. and PORTER L., International Law and AIDS, International responses, current

issues and future directions, International health law committee, USA, 1992.

HAOUR-KNIPE, M. and RECTOR, R., Crossing borders, migration, ethnicity and AIDS,

London, Taylor & Francis, 1996.

HAOUR-KNIPE, M., Migrants and travellers group, final report, Institut Universitaire de

médecine sociale et préventive, Lausanne, Cahiers de recherche et de

documentation, 1991.

HARRIS, D. and HAIGH, R., AIDS: a guide to law, Routledge, London, 1990.

HEILMANN, E., Sida et libertés, la régulation d’une épidémie dans un État de droit, Avignon,

Actes Sud, 1991.

HELLENIC CENTRE FOR THE CONTROL OF INFECTIOUS DISEASES (Keel),

AIDS, fundamental principles for the protection of human rights and civil liberties,

Ministry of health, Athens, 1996.

HENDRIKS, A.,

– The right to freedom of movement and the (un)lawfulness of AIDS/HIV specific

travel restrictions from a European perspective’, Nordic Journal of International

Law, 1990, p. 86.

– ‘AIDS-test, European Union, pre-employment medical examinations, right to

private life’, The European journal of health law, 1995, vol. 2, n° 2.


I.C.A.S.A., Xth international conference on AIDS and STD in Africa, ‘AIDS and

development’, abstracts book, Abidjan, Côte d’Ivoire, 7-11 December 1997.

ICASO (International Council of AIDS Service Organizations),

– An advocate’s guide to the international guidelines on HIV/AIDS and human rights,

Canada, 1997.

– NGO summary of the international guidelines on HIV/AIDS and human rights,

Canada, 1997.

INSTITUT SUISSE DE DROIT COMPARÉ, Étude comparative sur la discrimination à

l’encontre des séropositifs et des malades du sida, Étude réalisée sous l’égide du Conseil de

l’Europe, Strasbourg, 1993.

JAYASURIYA, D.C.,

– AIDS, public health and legal dimensions, Dordrecht, Martinus Nijhoff publishers,

1988.

– AIDS, health, policy and legal aspects, London, Commonwealth Secretariat, 1992.

– HIV law and law reform in Asia and the Pacific, New-Delhi, UNDP, 1995.

JAYLE, D. et PIALOUX, G. (Ed.), Le guide du sida, Paris, Crips-Vigot, 1996.

LABORATORY CENTRE FOR DISEASE CONTROL (Canada), Countries with HIV-

related entry restrictions, June 1997.

NATIONAL COUNCIL FOR INTERNATIONAL HEALTH HIV/AIDS

PROGRAMME, International perspectives on legal issues and human rights.

NATIONS-UNIES, Rapport d’une consultation internationale sur le sida et les droits de

l’homme, Geneva, 26-28 July 1989, New-York, 1991.

NELSON, ‘International travel restrictions and AIDS epidemic’, 81 Am. J. Int’l L.,

(1987) p. 230.

ODA (Overseas development administration),

– Sexual health and health care: HIV, AIDS and sexually transmitted infections, global

Epidemiology, impact and prevention, Health and population occasional paper,

London, 1996.

– Sexual health and care: sexually transmitted infections, guidelines for prevention and

treatment, Health and population occasional paper, London, 1996.

ODHIAMBO, D., ‘L’expérience du réseau éthique et juridique sur le VIH/sida du Kenya’,

Sociétés d’Afrique et sida, n° 15, January 1997, p. 10.

PANAMERICAN HEALTH ORGANIZATION, AIDS, profile of an epidemic,

Washington, 1989.


PANOS INSTITUTE, The third epidemic repercussions of the fear of AIDS, London, 1990.

PROCETTS, Contrasida informa, Boletin informativo, Ano 1, n° 1-2 (Peru).

ROTH, JAY S., All about AIDS, New-York, Harwood Academic Publishers, 1989.

SABATIER, R., Blaming others, London, Panos Institute, 1988.

SALOMON, M. and TOUBON, R, Sida, sociétés et populations, Montrouge, John Libbey

Eutotext, 1996.

Sociétés d’Afrique et sida, GRID, Université de Bordeaux.

SOW/SIDIBE, A., Le droit à l’épreuve du VIH, 1er Colloque international sida et religion,

31 October-2 November 1997.

Stop AIDS, HIV test, yes or no, Denmark, July 1992.

TERL, Allan H., AIDS and the law, a basic guide for the non lawyer, Washington,

Hemisphere Publishing Corporation, 1992.

TESSIER, D., FRÉCKETTE, G., ‘VIH et voyages, conseils relatifs aux immunisations et à

l’évaluation pré-voyage’, FMC, 1994, 40, p. 740.

THIRY, L., ‘Les boursiers et le sida: accompagner ou punir?’, Journal des procès, n° 103, 20

mars 1987, p. 8.

TOPAZE (Collective), Sida, structures d’accueil et d’hébergement, Brussels, October 1996.

TORRELLI, M ., ‘Le sida et la lutte anti épidémiologique’, Annuaire français de droit

international, XXXIII, 1987, CNRS, Paris.

US AGENCY FOR INTERNATIONAL DEVELOPMENT, AIDS in Kenya –

Socioeconomic impact and policy implications, Aidscap/Family health international,

1996.

VAN OVERBEEK, J., ‘AIDS/HIV infection and the free movement of persons within the

European Economic Community’, Common Law Market Review, 1990, p. 191.

VANSWEEVELT, T., Le sida et le droit, Une étude de droit de la responsabilité et de droit des

assurances, Bruxelles, Bruylant, 1990.

VINCINEAU, M. (Ed.), Le sida, un défi aux droits, actes, Bruxelles, Bruylant, 1991.

WAALDIJK, K. and CLAPHAM, A., Homosexuality: a European Community issue,

Dordrecht, Martinus Nijhoff Publishers, 1993.

WHITESIDE, A., Integration of the HIV/AIDS problematic in development assistance, A

Toolkit, European Commission.

WHO (World Health Organization),

– Background paper preparatory meeting for a consultation on long- term travel


restrictions and HIV/AIDS, Geneva, 4-6 October 1994.

– Directory of legal instruments dealing with HIV infection and AIDS, Geneva, 1997.

WORLD BANK, Confronting AIDS, public priorities in a global epidemic, Oxford University

Press, 1997.

X,

– Restrictions of entry and residence for people with HIV/AIDS, a global survey, Archiv

für sozialpolitik Aids-Archiv, ordered by Deutsche Aids-Hilfe, Berlin, Frankfurt

am Main, November 1991.

– Legislative Response to AIDS, Dordrecht, Martinus Nijhoff, 1989.

ZEEGERS, ‘AIDS and the law: a comparative overview’, Comp. L. Yearbook, 1992, p.195.

318 The free movement of persons living with HIV/AIDS – Annexe IV (2): Bibliography, free movement of persons

(2) On free movement of persons, migrations and human rightsBONNECHÈRE, M. (Ed.), Trente ans de libre circulation des travailleurs, Paris,

a documentation francaise, 1998.

BOSSUYT, M., L’interdiction de la discrimination dans le droit international des droits de

l’homme, Bruxelles, Bruylant, 1976.

CARLIER, J.-Y.,

– ‘Le droit d’entrée et de séjour des ressortissants des États membres’, in ‘1993, le

marché unique et l’Europe des personnes’, Actualité du droit, 1994/1, t. II.

– ‘L’Europe et les ressortissants des États tiers: de la coopération

intergouvernementale vers le droit communautaire’, Annales de droit de Louvain,

1993/2, p. 207.

– ‘La libre circulation des personnes dans l’Union européenne’, Journal des

tribunaux. Droit européen, 1995, p. 97, 1996, p. 63 and 1997, p. 193.

CARLIER, J.-Y. and VAN SIMAEYS, B., ‘Le nouvel espace de liberté, de sécurité et de

justice’, in Y. LEJEUNE (Ed.), Le Traité d’Amsterdam, Bruxelles, Bruylant, 1998,

pp.228–285.

CARLIER, J.-Y. and VERWILGHEN, M., Free Movement of Workers in the European

Community. Casebook of Judgment on the European Court of Justice, Brussels, Bruylant,

1998, 3 vol.

CENTRE FOR INTERNATIONAL LEGAL STUDIES, International immigration and

nationality law, The Hague, Kluwer, 1994.

Commentaire MEGRET, Le droit de la CEE, partic. t. I et t. III, 2e éd, Bruxelles, ULB,

1990 and 1992.

DRUESNE, G. (Ed), Code européen des personnes, 2e édition, Paris, Dalloz, 1996.

ESPINAR VICENTE, J. M., La nacionalidad y la extranjeria en el sistemo juridico espanol,

Madrid, Civitas, 1994.

EVANS, A., ‘Third country nationals and the Treaty of the European Union’, E.J.I.L.,

1994, p. 199.

FUND FOR INTEGRATION, How to establish residence in Austria, Vienna, 1996.

GISTI, Entrée et séjour des étrangers, la nouvelle loi Pasqua, 3e éd, Paris, décembre 1994.

GOODWIN-GILL, G.S., International law and the movement of persons between States,

Oxford Clarendon Press, 1978.

GUILD, E (Ed.), The legal framework and social consequences of free movement of persons in

The free movement of persons living with HIV/AIDS – Annexe IV (2): Bibliography, free movement of persons 319

the European Union, The Hague, Kluwer Law International, 1998.

IOM, Legislative acts of the CIS and the Baltic states on citizenship, migration, and related

matters, Moscow & Helsinki, 1996.

JORGENSEN, E., Union citizens, free movement and non discrimination, Denmark, Jurist-og

Okonomforbundets Forlag, 1996.

LAWSON, E., Encyclopedia of Human Rights, Washington, Taylor and Francis, 1996.

LOUSSOUARN, Y. and BOUREL, P., Droit international privé, 4e éd, Paris, Dalloz, 1993,

p. 636 ss.

MARTIN, D., and GUILD, E., Free movement of persons in the European Union, London,

Butterworths, 1996.

MAYER, P., Droit international privé, 4e éd, Paris, Montchrestien, 1991, p. 569.

MOTULSKY, F. et BOBRUSHKIN, M., ‘Le séjour des étrangers en Belgique et le

contentieux médical’, Journal des tribunaux, 1998, p. 281.

PLENDER, R.,

– International Migration Law, Dordrecht, Martinus Nijhoff, 1988.

– Legal documents on international migration law, The Hague, Kluwer Law

International, 1997.

RIGAUX, F., FALLON, M., Droit international privé, Bruxelles, Larcier, t. I et II, 1987,

1993.

SALINERO, G.B., ‘Analisis detallado del reglamento de extranjeria’, Economist and Jurist,

Mayo-Junio 1996, n° 19 (Spain).

TAVERNE, M., L’étranger et le droit belge, Statut administratif, La Charte.

TURPIN, D. (Ed.), Immigrés et réfugiés dans les démocraties occidentales-défis et solutions,

Paris, Economica, 1990.

VERWILGHEN, M. (Ed.), Droits humains fondamentaux, recueil de documents

internationaux et nationaux, Bruxelles, 1993.

X, ‘Aperçu législatif sur le ressortissant étranger dans l’organisation italienne’, Vie

italienne, 1985, October-December, n° 4, p. 55.

X. (Conference),

– ‘Les personnes: quelle place dans l’Europe de 1993?’, Annales de droit de Louvain,

1993/2.

– ‘1993, le marché unique et l’Europe des personnes’, Université de Liège, Actualités

du droit, 1994/2.

EUHIV/AIDSPROGRAMMEINDEVELOPINGCOUNTRIES

European Commission, Directorate-General for DevelopmentLuxembourg: Office for Official Publications of the European Communities

Do human rights charters or international and European lawsprohibit restrictions on the free movement of people living with HIVor AIDS? And can any such restrictions be considered a reasonableresponse to AIDS and its consequences? This book makes a majorcontribution to public policy by examining relevant international andnational law across 106 countries – focusing on the EuropeanUnion, its Member States, Eastern Europe and developing countriesin Asia, Africa, South and Central America.

It will be of interest to lawyers, policymakers, and all those whohave an interest in the human rights of people living with HIV/AIDS.

Dr Lieve Fransen is the Principal Administrator of the EU HIV/AIDS programme indeveloping countries at the European Commission, Brussels.

Jean-Yves Carlier is a barrister and Professor in International and European Law atthe Louvain Catholic University (Louvain-la-Neuve, Belgium), Visiting Professor atthe University of Paris II (France), and Visiting Professor at the University ofOuagadougou (Burkina Faso).

Graciela Schiffino is a barrister.

9 789282 871263

ISBN 92-828-7126-6

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