HIV/AIDS and Travel Restrictions

Kelvin Teo

During the recently concluded Singapore Bioethics Congress, the esteemed Michael Kirby, Puisne Justice of the High Court of Australia, briefly broached on the topic of HIV and Human Rights. One major, albeit short feature of his presentation was the increasing recognition accorded to combating the HIV epidemic. Goal 6 of the United Nations’ Millenium Project states:” Combat HIV/AIDS, Malaria and other diseases”

Notwithstanding the aim to deal with the epidemic head on, Kirby raised the problem of current laws, especially with regards to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement which could very well raise the price of HIV anti-virals (though Kirby didn’t explicity mention the TRIPs agreement, it goes without saying that the latter is going to affect prices of anti-virals with the sufferers from the Sub-Saharan Africa being the hardest hit as they are poor). The salient point pertaining to the TRIPs agreement will be revisited later in this article.

The UN should be lauded for according due recognition to the issue of HIV and human rights through the establishment of the UNAIDS Reference Group on HIV and Human Rights. To make matters interesting, Kirby went on to give an honest assessment of his home country, Australia, with regards to the respect of human rights. The later noted:” We have not always been respectful of the universal human rights of our indigenous peoples; of women; of Asian immigrants in the era of White Australia; of refugee applicants today; of the disabled; of people living with HIV and AIDS; of homosexuals; or of the poor and homeless.”

A case study

We are particularly interested in the rights of those whom are living with HIV/AIDS, particularly the temporary migrants, hence the focus on migration rights of HIV sufferers. China, for instance, does not allow HIV sufferes to enter the country in the past, according to Kirby. However, this travel restriction has been lifted recently. Consider the case of Mr Gurmit Singh, an aspiring researcher who wanted to further his studies in Australia in the excerpt below:

My country, Singapore, has had the finger pointed at them a lot due to the travel restrictions [it imposes] on HIV-positive people. But it was Australia that denied me entry [into the country] in 2005. …”I knew that I was HIV positive and I explained that to the doctor. I didn’t imagine that I would be refused a visa and the right to study because of HIV; my studies had been paid for. The results of my HIV test were sent straight [to the immigration service] in Australia…. one day I received an email informing me that my visa request had been refused. It didn’t mention AIDS specifically, but it said something like ‘the medical officer has informed us that you do not fulfil the health criteria required for a visa’. I didn’t have any other health problems [apart from HIV]. … I had to explain [to people around me] why I wasn’t going to Australia; I also had to tell my family [that I was HIV positive].

According to the Immigration Department of Australia, Australia enjoys some of the best health standards in the world, and in order to maintain these standards, those who wishes to live and work in Australia has to satisfy certain health requirements. The raison d’être behind the health requirement is to minimise public health and safety risks to the Australian community and contain public expenditure on health and community services, including Australian social security benefits, allowances and pensions.”

The unfortunate incident involving Gurmit is by no means unique. When we consider the issue of management of HIV, it involves both treatment and quarterly blood monitoring. Blood monitoring involves the counting of various types of blood cells and determining the concentration of the virus. Thus, when it comes to the costs of managing HIV, both treatment and monitoring should be taken into account. The annual cost of blood monitoring is estimated to be between AUD$400 – $500, and hence, most of the costs is taken up by treatment.

Previously, a Zambian student who was refused a visa appealed his case to the Federal Court of Australia. Initially, Justice Finkelson ruled in favour of the student on the technicality of what constitutes healthcare costs (K** v MIMIA [2005] FCA 429), but Finkelson’s ruling was overturned by the full bench of the Federal Court.

The elucidation of the Australian case study is by no means an attempt to single out and nitpick on a country where migration rights of HIV infected individuals become a pertinent issue. But rather, it is to highlight the concerns that Australia has, which may very well be reflected in the concerns of other countries as well – the protection of community health and the safeguarding of limited resources devoted to healthcare.

Resource-wise, the fear is that the host country may have to bear the costs for HIV treatment, and thus, imposing the restriction will prevent such a situation. These two major concerns were articulated in a joint statement by UNAIDS and the International Organization for Migration (IOM) as the basis for travel restrictions. In fact, the document further added that governments who have not enacted HIV travel restriction policies find themselves under public pressure due to expectations imposed on the former to “do something” to combat the epidemic.

Negative rights and positive rights and their application

Broadly speaking, there are two types of rights – positive and negative. Positive rights are basically a right to an object, which may be goods such as food or a service, such as healthcare. In as far as HIV patients are concerned, assuming we live in an ideal world, no one would deny that these patients have a positive right to healthcare.

How about negative rights? Negative rights refer to civil and political rights. Migration rights can be considered as a form of negative right, which is applicable to the HIV patient. Negative rights also apply to the community in general, i.e. members of the community have the right to be free from ill-health. Thus, for instance, if I suffer a contagious disease that can spread through coughing or sneezing droplets, my taking precautions to limit disease spread by donning a face mask is considered a protection of the community’s negative rights, since the latter have the right to be free of the disease.

A protection of others’ negative rights in such cases requires prior knowledge of the condition such as the mode of transmission and steps taken to prevent transmission. Hence, it goes without speaking for the issue of HIV migrants, the challenge is to reconcile the latter’s negative rights with that of the community that they would be visiting.

Suggestions on the way forward

In order to address the community health concerns of the host country and the HIV patient’s migration rights, there is a need to establish the latter’s knowledge on management of his condition and more importantly, the reduction of the likelihood of the spread of virus to members of his host community. This can be achieved during the medical screening phase. The doctor in charge of the screening may interview the patient for an understanding of his condition and assess his knowledge on the recognized methods implemented to reduce transmission of HIV, which in this case is usually the correct usage of condoms.

The results of this assessment may be forwarded to the immigration department of the destination country. Hence, as mentioned earlier, establishing prior knowledge of the condition and prevention of transmission on the patient’s part will make him less likely to be perceived as a ‘community health hazard’ and increase the likelihood of an approved visa.

The next issue is the positive right of the HIV patient, ideally achieved in a manner that does not interfere with the positive rights of the community in a host country (healthcare access), since healthcare financial resources are finite. Hence, the need to reconcile the positive rights of both sides too. For HIV-infected travellers who could well afford the costs of HIV treatment within their host country, the issue is more straightforward and requires an additional administrative intervention. One measure is to have the traveller establish an escrow bank account (within the host country) that comprises the minimum estimated cost of treatment during his nominated duration of stay.

Imposing a mandatory requirement that the traveller is not allowed to withdraw the money for any other purposes other than treatment will lessen the likelihood of a loophole exploitation(without such a mandatory requirement, the traveller may withdraw the money for other purposes, including remitting the money back home).

For travellers who cannot afford the treatment in their host countries, the situation is trickier. Recall the earlier aforementioned point about the TRIPS agreement which will increase the price of anti-virals. Kirby acknowledged inevitable. However, a possibility should be explored in which the implementation of the agreement should be done with discretion. For instance, extremely poor countries whose majority of population cannot afford the price of anti-virals can be exempted from the agreement.

This exemption can also be explored in cases whereby a host country happens to harbour a community of HIV-infected temporary residents (unlikely to be able to afford treatment) from a poor country where majority of the community cannot afford the costs of drugs when the TRIPs agreement is in effect. These temporary residents have a case for treatment with generic anti-virals , and possibilities should be sought in gaining exemption from TRIPs. Also, additional steps to make the costs of drugs more affordable include lifting of import tariffs.

External agencies within the host country (outside of its healthcare system) may also play an aid-provision role in the healthcare of the temporary resident, where the treatment is either provided free or at a affordable small fraction of the cost. Agencies include the United Nations or the home country embassy. Using an example to illustrate, the Australian High Commission in Singapore can establish a medical outstation that Australian nationals in Singapore with HIV can turn to for treatment of their condition. This ensures that they still have access to healthcare, and at the same time, has no impact on the finite resources dedicated to the Singapore healthcare system. The drawback is that the locations of such agencies may not be convenient for travel reasons. Thus, the two approaches achieves to ensure availability of HIV treatment at low prices, and does not drain the host country’s resources.

An ending note

There is without a shadow of doubt an increasing need to address the issue of migration rights of HIV-infected travellers. As of now, the latter still faces the barrier of travel restriction due to community health and resource issues. It requires a successful multi-faceted approach on the multinational, legal and administrative fronts that will see our brethren with HIV move without restriction across borders.

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Photo courtesy of IRIN