Legal status if migrants in Russia with respect to HIV

As of today, Russia has a current rule stating that HIV+ foreigner is a subject to deportation. In other words, a foreign national has no chances to reside in Russia legally for study or work.

According to the Federal Law on “On the Prevention of the Spread in the Russian Federation of Diseases Caused by the Human Immunodeficiency Virus (HIV-Infection)” and the Law “On Legal Status of Foreign Nationals in the Russian Federation” a foreign national has to present medical certificate confirming HIV-negative status when applying for temporary or permanent residence permit. A registration agency has a right to reject to issue a permit if the certificate is not presented.

Federal Law No 38-FZ of March 30, 1995 “On the Prevention of the Spread in the Russian Federation of Diseases Caused by the Human Immunodeficiency Virus (HIV-Infection)”

According to article 10 “ Rules for Entry the Russian Federation for Foreign Nationals and Stateless Persons” diplomatic missions or consulate institutions of the Russian Federation issue Russian entry visas to foreign nationals and stateless persons planning to reside in the Russian Federation for over three months only after an applicant submits, among other documents, a medical certificate confirming his/her HIV-negative status unless otherwise is established by international agreements and agreements of the Russian Federation. These conditions do not apply to employees of diplomatic missions and consular offices of foreign states, employees of international intergovernmental organizations and their family members. The requirements to such medical certificate are established by the Government of the Russian Federation.

If a foreign national or a stateless person residing in the Russian Federation is diagnosed with HIV, he/she shall be subject to deportation from the country according to legislation established by the Russian Federation. This means that a person is expected to leave the country (on his own) otherwise will be subject to administrative measures – forced deportation will be organized by officers of the Federal Migration Service. Resolution 199 of the Government of the Russian Federation provides Federal Service on Customers’ Rights Protection and Human Well-Being Surveillance with the authority to make decisions whether further stay of a foreign national on the territory of Russia is permissible or not due to his/her health condition. Officers of the Federal Migration Service only supervise and control the deportation process.

Ruling of the Constitutional Court of the Russian Federation No 155-О of May 12, 2006 provides that if the decision on deportation on account of diagnosed HIV infection is appealed against, courts and law-enforcement bodies shall be humane and consider the family status, health conditions (including in-patient stage) and other exceptional reasons deserving attention when making decision on whether deportation is essential and shall be done urgently. In any case, HIV+ person shall duly follow measures for prevention of possible spread of HIV infection.

Ruling of the Constitutional Court even today helps individuals who might be subject to deportation on account of diagnosed HIV infection feel more or less safe for their future as it provides that legal norms discriminating HIV+ individuals shall be applied with consideration of each particular life situation. Even refusal of migration services to accept documents for temporary or permanent residence permit may be litigated in virtue of this Ruling that suggest courts make  decisions in favor of HIV+ person if he/she has a family or other special conditions in Russia.

It should be noted that Resolution of the Government of the Russian Federation No 188 of April 2, 2003 “On the List of Socially Dangerous Infectious Diseases as Reasons for Refusal or Annulment of Temporary or Permanent Residence Permits for Foreign Nationals or Stateless Persons” includes the following diseases, along with HIV infection: lepra (Hansen’s disease), tuberculosis, and sexually transmitted diseases (syphilis and other). Thus, HIV infection is not the only medical condition which may be the reason for refusal to grant temporary or permanent residence.

European Court of Human Rights (ECHR) recognized prohibition for HIV+ foreigners to reside on the territory of Russian Federation for over 3 months violating Convention for the Protection of Human Rights and Fundamental Freedoms. In its Decision of March 10, 2011 in the case of Kiyutin v Russia ECHR supported the claim of a foreign national where the Russian Federation refused to grant permanent residence on account of diagnosed HIV infection. In this case, ECHR in its Decision recognized discrimination on account of health condition and abuse of a right for respect of a family. ECHR recognized legal norms prohibiting mere presence of HIV+ foreign nationals on the territory of the Russian Federation to be unjustified restriction of human rights. The Court noted that only three (Armenia, Moldova and Russia) out of 47 EU member states are still having legal norm requiring deportation on account of HIV+ status. ECHR recognized that non-selective refusal in legal residence in Russia done without individualised assessment and based not on the facts of a particular case but on person’s health condition only breaches the anti-discrimination provision as per article 14 of the European Convention on Human Rights. Decisions of ECHR are officially recognized in Russia as it adopted the Convention ECHR refers to. There are successful cases of enforcement of rights of migrant in Russia.