Court overrules Russian consumer watchdog’s decision on undesirability of a HIV-positive person’s stay

On May 14, 2019, Dzerzhinsky district court of St. Petersburg overruled the earlier resolution concerning undesirability of the stay of Mr. Ts., a HIV-positive citizen of Moldova, in the Russian Federation, which had been issued by the office of Russia’s health and consumer rights watchdog Rospotrebnadzor in St. Petersburg and Leningrad region.

Mr. Ts., the applicant in this case, had lived in Russia for more than five years, his wife is a citizen of the Russian Federation and they raise a child together. In April 2015, while undergoing a medical examination to draw up documents for a temporary residence permit, Ts., same as his wife, was found to be HIV-positive. On the basis of this, Ts. was refused a temporary residence permit in the Russian Federation and was forbidden to stay in the country.

Ts. decided to appeal this ban as an unjust and unjustified interference of state bodies of the Russian Federation in his personal life. The interests of Ts. in court were represented by lawyers Olga Tseytlina and Sergey Mikhaylichenko with the support of Anti-Discrimination Centre “Memorial”. The applicant’s legal representatives indicated in court, that the decision of Rospotrebnadzor did not take into account such legally significant circumstances as the length of Ts.’ residence in Russia, him being a law-abiding resident, his marital and social status, the severity of his state of health and the health of his wife, who was a citizen of the Russian Federation, and the fact that he had guardianship of a child.

In accordance with the provisions of the law, which were in force at the time of the decision by Rospotrebnadzor on the undesirability of Ts.’ stay in Russia, the presence of a HIV-positive foreign national in the country was considered hazardous for the welfare of the population, such person was subject to deportation and the documents, which gave him/her the right to stay in Russia had to be annulled. However, the legal representatives of Ts. drew the court’s attention to the fact that on March 12, 2015, the Constitutional Court of the Russian Federation issued a decree on HIV-positive foreigners, who had families in Russia: rules allowing them to decide on the undesirability of their residence in the Russian Federation, on their deportation and on their refusal to get temporary residence permit or cancellation of already issued temporary residence permit were found to be inconsistent with the Constitution of the Russian Federation.

When considering this case, Dzerzhinsky district court has taken into account the fact that the decision of Rospotrebnadzor had been adopted solely on the basis of Ts. being HIV-positive, without clarifying other important circumstances in his case. Such an approach to decision-making, according to the court, did not meet the principle of fairness and proportionality of the established restriction in relation to the revealed legal violation, and it contradicted the existing legal norms and prevented realization of human rights and freedoms.