HIV positive? Russia’s reaction is negative.

Migrants play a vital role in Russia’s economy, as a source of cheap labour in the retail trade and construction industries. Most come from poverty stricken neighbouring countries that were once part of the Soviet Union: according to official figures published by the Federal Migration Service (FMS), in August 2013 alone over 3.5 million people arrived from Uzbekistan, over one million from Tadzhikistan, almost half a million from Kazakhstan and a similar number from Kirghizia and other ex-Soviet republics. Their remittances are crucial to the economies of these own countries too. 

Migrants, go home!

Russian attitudes to these migrants and immigrants is far from positive at the best of times, and in a country where having HIV also means discrimination and stigma, being a foreigner as well carries an extra risk. Agora, a human rights organization based in Kazan, Tatarstan, has carried out a study of HIV among migrants and immigrants, who are not included in official health statistics as they have practically no access to Russian medical services – the best they can hope for is first aid in an emergency. The first case of HIV was registered in Russia in 1987; by 1996 this number had risen to over 1000, and figures from 2012 show over 700,000 people living with the condition (some external sources put the actual figure at well over 1 million). And as the numbers rose, the authorities decided that one way of keeping them under control would be to refuse entry or residence rights to people with HIV/AIDS. 

HIV prevalence across Russia. From hivpolicy.net

So in 1995 a law ‘On the Prevention of the spread of HIV in Russia’ was passed, allowing for the deportation of any foreigner diagnosed with HIV, and this was followed in 2002 by another law under which anyone with HIV could be be refused a temporary residence permit or the right to apply for permanent residence. Agora’s research shows that the law is not only discriminatory by definition, but has led to the breakup of families, and that Russia has already lost a number of appeals taken to the European Human Rights Court (ECHR). 

As HIV/AIDS numbers rose, the authorities decided that one way of keeping them under control would be to refuse entry or residence rights to people with the condition 

Take, for example, the case of N, an Estonian who had lived in Perm for several years and had a Russian wife and a young son. He was registered at the city’s AIDS centre, was on medication and his HIV was in remission. As a foreigner, he periodically needed to extend his residence permit, and on one visit to the local FMS office he was suddenly informed that he had two weeks to leave Russia. This was not long enough to challenge his deportation in Perm and he had to return to Estonia for a time, but the ruling was eventually overturned on appeal. In fact, the FMS didn’t even send anyone to argue its case at the appeal hearing. ‘We were amazed how thoroughly judge Tatyana Uglova went into the case’, Ilnur Sharapov, one of Agora’s lawyers, told me. ‘She practically admitted that the situation is in breach not only of the Russian Constitution, but the European Convention of Human Rights as well’.  

N and his family avoided having to take their case to Europe, but in her judgment Judge Uglova cited the case of Kiyutin v. Russia, which did go to the ECHR in 2011. Viktor Kiyutin was an Uzbek citizen settled in Russia, with a Russian wife and daughter, and like N was refused an extension of his residence permit because of his HIV status. The ECHR ruled against the Russian authorities on the grounds of both discrimination on health grounds and a threat to family relations, and Russia received a fine of €15,000. 

Individuals might win their case, but the picture hasn’t changed

This has clearly become a test case, and the Agora report notes that since 2011 Russian courts have been developing a ‘consistently positive attitude’ to people caught in this trap. Their study found at least twenty such cases in various parts of the country. Among those falling foul of the law were two Ukrainian women, both of whom had lived in Russia more than 15 years, were married to Russian men and had children by them, and wanted to apply for citizenship. This is normally granted either through marriage with a Russian or after five years of residence in Russia, but the applicant has first to be granted temporary residence, and they were refused because of their HIV status. In both cases citizenship was vital to them – one, for example, had to become her family’s breadwinner because her husband was ill and could no longer work, and so needed to sort out her legal status. Both women had their refusal overturned by the courts. 

In 2006 the Constitutional Court ruled that the clause relating to migrants with HIV should be interpreted with humanitarian considerations in mind, but the agencies concerned are still sticking to the absolute letter of the law.

However these are still just individual cases. As Ilnur Sharapov says, ‘We have been winning a lot of cases, but it hasn’t made any difference to the overall situation. Both the FMS and the Agency for Health and Consumer Rights, the other body involved in this, are still sticking to the absolute letter of the law in their relations with immigrants with HIV.’  

Even the Constitutional Court has been unable to change the situation. In May 2006 its members ruled that the clause in the1995 law relating to migrants with HIV should be interpreted with humanitarian considerations in mind: ‘[judges] should take into account family circumstances, state of health and other exceptional relevant factors when deciding whether it is indeed necessary to deport the individual from Russia’. In other words, for the last seven years the FMS and Agency for Health and Consumer Rights have been theoretically obliged to look as closely as possible at each case.

And things can only get worse

In September the head of the FMS answered a press question about a possible liberalisation of Russia’s immigration laws with the statement ‘We’ll get nowhere using a carrot. We need a stick.’ 

At the same time even Agora’s human rights experts have to admit that they have no answer when the officials argue that they can’t be accused of breaking the law before the case comes before the court. Both agencies insist that they are just obeying instructions and following the law. For Sharapov, however, ‘it’s a question of basic justice’. The fact is that most of the migrants become infected with HIV after arriving in Russia. And even if they were intending to legalise their status, the fact that they have the condition and the almost universal stigma and discrimination it arouses force them to break the law. As one of the Ukrainian women mentioned above says, ‘The people in the FMS actually asked me why I was even bothering to try and renew my residence permit. “Either get yourself some false papers or forget about the whole thing – nobody will notice.”’

On 19th September Konstantin Romodanovsky, head of the FMS, spoke at a press conference on the problems of migration, and in answer to a question about a possible liberalisation of Russia’s immigration laws said ‘We’ll get nowhere using a carrot. We need a stick.’ 

The message is clear: you can live and work in Russia for as long as you like, but catch HIV and you’re an illegal immigrant forever.