Issues at the Border: Refugees and Asylum

• Pages: 72-74

Contenidos

• The Issue.
• Legal and Policy Considerations.
• Practice Examples.
• References.

Page 72

The Issue

Many nations have placed restrictions on the entry of HIV-positive persons into their countries (see Topic 2.9). In countries that have enacted such restrictions, these policies may impact the ability of HIV-positive persons to become refugees or receive asylum. HIV-positive persons may be seeking asylum (if they are already in the country) or refugee status (if they seek to enter from abroad) as a direct result of their HIV status. In many areas of the world, PLHIV are faced with oppression, abuse, and discrimination. Additionally, many governments are unable or unwilling to provide effective treatment, including antiretroviral therapy. Because of these concerns, human rights advocates have called for governments to grant asylum or refugee status to people who would otherwise face abuse or persecution in their countries of origin due to their HIV status, or be denied access to HIV treatment due to the circumstances in their home countries. AIDS activists have argued also that people seeking asylum or refugee status on other grounds should not be denied because of their HIV status.

Legal and Policy Considerations

Laws and policies for granting asylum often apply a complicated calculus for determining whether a person meets the criteria to remain in the country. Typically, asylum decisions are fact-specific, based on the discrete circumstances facing a person in their home country. In many countries, asylum will be granted only in cases where the applicant is able to show that there is a high likelihood of abuse, torture, persecution, or significant threats to health if he or she returns home. Similarly, Article 33 of the 1951 Convention Relating to the Status of Refugees provides that states must not "expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of . . . membership of a particular social group . . ."

Advocates for PLHIV argue that the disease itself should be grounds for asylum in certain circumstances. In many areas of the world, people with HIV are subjected to severe abuse, discrimination, and social ostracism, from both state actors and society in general. Many PLHIV have little or no consistent access to basic health care, much less care for HIV and related infections. Remaining in their country of origin will...