HIV-positive foreigner granted residence permit in Russia after years of legal struggle

Mr. M., a native of Ukraine, who had a passport of a citizen of the USSR, first contacted ADC “Memorial” back in March 2013, following decision of the Federal Service for Surveillance on Consumer Rights (Rospotrebnadzor) decided on “undesirability” of his stay in Russian Federation based on his health status (it had been revealed that M. had HIV). This decision was then appealed in court by ADC “Memorial” and lawyer Dmitry Bartenev, whereupon M. applied for a temporary residence permit in Russia. However, the Russian Federal Migration Service (FMS) refused to issue him a residence permit for the same reason – because he had HIV.

In October 2014 lawyers of ADC “Memorial” together with lawyer Olga Tseytlina appealed to Dzerzhinsky district court of St. Petersburg in order to recognize the earlier decision of FMS illegal and to cancel it, given the state of the claimant’s health and the health situation of his wife, a citizen of the Russian Federation. In December 2014 this appeal was granted a positive resolution by the court and the earlier decision of the Federal Migration Service was overruled.

In mid-February 2015 M. received a temporary residence permit in Russia, and then, after 21 months of waiting – a permanent residence permit. Currently, M. is preparing to apply for citizenship of the Russian Federation. A total of eight years have passed since M. first started his attempts to legalize his stay in the Russian Federation (first by himself, then with the assistance of ADC “Memorial”).

On March 15, 2016 the European Court of Human Rights (ECtHR) in its judgment in the case of “Novruk and others v. Russia”, which brought together five similar complaints on the violation of the rights of HIV-infected citizens of Ukraine, Kazakhstan, Moldova and Uzbekistan, has stated that the practice of deportation of HIV-positive foreigners, whose relatives were citizens of Russia, was discriminatory and violated the right to respect for private and family life (Articles 8 and 14 of the European Convention).

Earlier, on March 12, 2015 the Russian Constitutional Court declared unconstitutional the restrictive provisions of the laws “On the procedure of exit from and entry into the Russian Federation”, “On the legal status of foreign citizens in the Russian Federation” and “On prevention of the spread of disease caused by human immunodeficiency virus in the Russian Federation”. In December 2015 corresponding changes into Russian legislation were put in force, allowing foreigners, whose relatives were citizens of Russia, to live in Russia.

However, in spite of these legislative changes, Russian courts still continue to deny HIV-positive foreigners the right to live in the Russian Federation and ban them from entering the country on the basis of “undesirability”.