Seoul High Court: HIV Not Justifiable Reason for Deportation

by Brendon Carr

Some good news for a change: The Seoul High Court has ruled that foreign residents of Korea cannot be deported simply because of testing HIV positive, according to a report in the Law Times I noticed today. The High Court, an intermediate appellate court, affirmed a district court ruling in favor of a Chinese migrant laborer, a Mr. (Ms.?) Heo, who challenged a deportation order by the Seoul Bureau of the Immigration Service prompted by an HIV-positive blood test result.

Presiding Judge Yu Seung-Jeong (phonetic spelling) held that the objective of protecting public health must be balanced against the infected person’s human rights—which means privacy, as well as the right to receive medical treatment. Judge Yu noted that detection and treatment of HIV were more effective methods to arrest the spread of AIDS than simply tossing out foreigners found to carry the virus.

In the community of foreign residents of Korea, the current practice of automatic deportation for HIV-positive foreigners has tended to suppress the number of people getting voluntarily tested—because as bad as a positive result would be, for many it would be worse to be summarily kicked out of the country and returned home jobless and without health insurance coverage.

Although the story doesn’t note whether or not the case has been appealed, a matter as important as this one undoubtedly will be decided by a final judgment of the Supreme Court.

8 Responses to This Entry

1. BigB on November 18, 2008 @ 10:11 am

   Hopefully, Korea will enact laws to prohibit discrimination against those with HIV.  It is one of only 7 countries left in the world to prohibit HIV-positive foreigners from entering the country.

2. Ryan on November 19, 2008 @ 10:24 pm

   Until July 30, 2008 (when Pres. Bush signed the President’s Emergency Plan for AIDS Relief) the US explicitly excluded people infected with HIV under its classification of inadmissible aliens listed in the Immigration & Naturalization Act §212(a). Even after the new statute, I think that infected persons must receive a waiver (under INA §212(d) from the Department of Health & Human Services to gain admissibility.

   However, I don’t believe that someone admitted to the US can actually be deported (under INA §237) for contracting AIDS after entering the US. So basically the United States’ policy is to exclude from entry if they know you have HIV (unless you get a waiver, now) but not to deport if they learn you have HIV after entry. This avoids the public policy concern of disincentivizing testing and treatment mentioned in the Seoul High Court’s ruling while still allowing for discrimination (rightly or wrongly) in the admissions process.

3. I disagree on November 20, 2008 @ 7:39 pm

   What wonderful news. So now paying for this Chinese person’s treatment is the responsibility of the Korean taxpayer. And AIDS treatments cost tens of thousands of dollars a year. And in the meantime he or she may infect others in Korea, who could also presumably exercise their “human rights” to government-paid AIDS treatment. And the court has laid out the welcome mat for other HIV+ foreigners to emigrate to Korea and get their free AIDS drugs. What great progress Korean law is making!

4. John on December 05, 2008 @ 1:14 pm

   You can’t get deported if you came to the U.S. legally, and then subsequently contracted HIV. However, if you had HIV when you were entering the country, you can get deported. One of the grounds for removal proceedings is if you were inadmissible at time of entry. See 8 USC 1227(a)(1).

   I haven’t read the appellate opinion, however I have read the original district court opinion. Rest assured, #3, the opinion did not give a blanket waiver to all foreigners with HIV. The plaintiff’s mother was a naturalized South Korean citizen. The plaintiff had no remaining family members in China. The plaintiff’s mother and her husband filed an affidavit swearing that they will take care of him. I’m not 100% sure on this fact, but he spoke Korean (chosun-jok).

   There is no welcome mat inviting all HIV+ individuals from around the world for free treatment.

5. Brendon Carr on December 05, 2008 @ 4:56 pm

   John—Great comment. Thanks so much for keeping up with Korea Law Blog.

6. Daniel on December 06, 2008 @ 7:41 am

   It’s interesting to see the numerous references to the Immigration and Nationality Act in response to the court’s ruling on this important issue. In my opinion the court’s ruling and opinion is applaudable because with a highly sensitive issue such as HIV/AIDS, and the common fears held by citizens of all countries, this court analyzed the surrounding issues carefully. Is public safety/health guaranteed only by a quarantining effort (deportation/removal being the most effective quarantine method)? While removing an individual with HIV or AIDS eliminates the possibility of that individual infecting others, what effect would a blanket order for deporting non-Korean nationals infected with HIV or AIDS have on the willingness of others who have not yet been tested or treated? Would it have a chilling effect? In other words, from a public safety perspective, what is the best prevention policy in combating the fear of spreading HIV/AIDS? Deporting those known to have HIV/AIDS (non-Korean nationals) or creating an atmosphere that fosters voluntary testing and seeking treatment without fear of reprisal.

   While current immigration law in the United States (as stated above) does not penalize those who have entered the country legally (i.e. those adjudicated “admissible” by an immigration officer) and subsequently diagnosed with HIV/AIDS, we shouldn’t be under any delusion that the hard issues and factors weighing on this particular court were non-existent in the United States. In fact, in an appropriation bill rider in 1987, Congress declared inadmissible those who tested positive for HIV. However, in 1990 the INA incorporated a reference to “communicable diseases.” As a result, the Depeartment of Health and Human Services (HHS) proposed regulations that excluded HIV/AIDS as a basis for inadmissibility because HIV/AIDS is not a communicable disease via casual contact. This decision by HHS drew heavy criticism that resulted in the then Immigration and Naturalization Services (INS - now the Dept. of Homeland Security) to re-incorporate HIV/AIDS as a “communicable disease.” So the policy debate has gone through its course in the United States and will most likely continue to do so in the future (albeit in my mind with the issue of national security and terrorism at the forefront of the immigration law debate, not anytime in the near future).

   Nevertheless, the Court in Korea has touched on issues that may have left open matters for future litigation. Suppose if Ms. Huh (the appellant) had family members in China that could care for her. Or what if Ms. Huh had not entered legally through a family-sponsored invitation and valid entry visa? Does the court’s opinion on the “protection of dignity rights” mean that HIV-positive/AIDS-positve non-Korean nationals have a right to receive government funded treatment at the taxpayer’s (note #3 - not just Korean taxpayers but all taxpayers in the Republic of Korea) expense or just the right to have access to treatment? What are the boundaries to one’s “right to pursue happiness” when it comes to medical treatment..and on and on. No one (least of all myself) expects one court decision to answer every issue. And it’s the unanswered questions that challenge attorneys (from all countries).

   Thanks to Mr. Brendon Carr for introducing this lawblog (lawtimes) and for his contribution in this wonderful blog.

7. John on December 16, 2008 @ 10:39 am

   Just to add to #6, HIV was removed from INA this year as one of the grounds of inadmissibility by the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, which also renewed President Bush’s Emergency Plan for AIDS Relief. Americans have pledged $48 billion over the next five years to help other developing nations fight HIV/AIDS, malaria and tuberculosis.

   INA still has “communicable diseases” as a ground of inadmissibility, and HHS defines the term. HHS still has not removed HIV/AIDS from the list of communicable diseases, but considering that they tried to remove it before, I’d guess it’s only a matter of time.

   So to summarize…. the U.S. may soon abandon its discriminatory practice against non-US citizens with HIV/AIDS.

   As far as Korea goes…. your guess is as good as mine. I guess some could argue that the Korean government pays 100% for medications, whereas in the US there’s no “socialized medicine.” (except ADAP does pay 100% for those living with HIV/AIDS if they make less than a certain amount a year) It’s interesting to note that Canada doesn’t bar entry for those with HIV/AIDS when it comes to a temporary stay (visitor, student, worker, etc.) but for immigration under the skilled worker category, they do perform cost-benefit analysis, and do reject applicants who need meds. Similarly, the US does reject green card/citizenship applicants if they are deemed a “public charge.” With cost for medication so high, financial burden always seems to be central to the debate. (PEPFAR raised visa fee by $1 to offset this cost.)

   Anyways. I find no excuse in implementing a blanket ban on foreigners with HIV/AIDS. Additional costs can be recouped through other means. Besides, I don’t see any evidence that foreigners are coming to Korea for HIV treatment. They can probably save more money by denying health insurance to gyo-po’s who come to Korea with the sole purpose of obtaining medical care.

8. John on December 19, 2008 @ 10:20 am

   FYI- I just confirmed that the government appealed the case to the Supreme Court.

Comments Policy: Comments to Korea Law Blog are moderated. This means abusive, or just plain stupid comments will be deleted. So don't be a jerk. It also means there may be some delay from the time you post a comment to the time it shows up here. If your comment wasn't against the policy, it will show up in a little bit.