Court overrules ban for a HIV-positive foreign national to stay in Russia with his family

14.02.2015
This post is also available in: Russian

ADC “Memorial” in cooperation with attorneys and various rights defending organizations consistently strives for legal recognition of the right of HIV-positive foreign nationals to stay in the Russian Federation, as discrimination of people with immunodeficiency virus is in violation of international law, including European Convention on Human Rights, while ban on a foreigner’s stay in Russia together with his family is a violation of the principle of family unity.

Dzerzhinsky district court of Saint Petersburg has overruled decision of the department of the Federal Migration Service (FMS) for Saint Petersburg and Leningrad region, which had earlier refused to issue temporary residence permit for M.M., citizen of Cameroun, and obliged the department to consider appeal for residence permit once again. Decision of FMS to not grant temporary residence permit to M.M. was based solely on the latter having HIV-positive medical status and this decision of FMS was earlier appealed in court by lawyers (with support provided by ADC “Memorial”). Earlier a similar court ruling was also made in a case involving HIV-positive Ukrainian citizen.

In a speech before the court Olga Tseitlina, attorney of M.M., stated that in accordance with the court order of the Constitutional court of the Russian Federation, family status of a HIV-positive foreign national is a substantial instance when considering cases concerning desirability of a person’s stay in Russia. Given M.M.’s family status and the fact that he has an underage child, the refusal to issue him a temporary residence permit should be considered illegal, violating his rights, the rights of his wife (Article 8 of European Convention on human rights and fundamental freedoms) and his child (Articles 54 and 55 of the Family Code of the Russian Federation, Articles 9 and 10 of the UN Convention on the Rights of the Child), as the child would lose contact with father if the latter was to leave Russia and part with his family

The attorney considered refusal to grant residence permit to a foreign national based on his HIV-positive status to be discriminatory (Article 14 of the European Convention on human rights and fundamental freedoms). She also presented to the court a notice from the city AIDS centre, which confirmed that M.M. regularly visits the doctors there, observes medical recommendations concerning safe behavior in daily life and possesses no epidemiological threat.

In 2013-2014 M.M. had to appeal to various courts in order to defend his rights due to the problems he encountered after his infectious disease had been discovered. Back in 2013 Rospotrebnadzor, Russian consumer rights and healthcare watchdog, received a note of M.M.’s HIV-positive status from Botkin hospital, which further lead to a ruling on undesirability of M.M.’s stay in Russia, meaning that he had to leave Russia or face deportation and also face ban on entry to Russia, where his wife (who had been pregnant at that time) lived. M.M. made several legal appeals against this on numerous occasions in order to defend his right to stay with his family in Russia, rightfully claiming that this ban “threatened the very existence of family, because following the ban the family was deprived of the possibility to live together and the child was deprived of possibility to stay with father and grow in complete family”.

The claimant’s position in court was also supported by the representative of Russian ombudsman for children’s rights, who spoke in favor of letting M.M. stay in Russia in order to preserve the family in the interests of M.M.’s small daughter.

The court’s ruling of February 2015, which lifted ban on M.M.’s stay in the Russian Federation, defends the right of HIV-positive foreign nationals to stay with their families and also provides for observing the obligations of the Russian Federation in accordance with the ruling of the European Court for Human Rights in the case of “Kiyutin vs. Russia”, when discrimination of foreign nationals in the Russian Federation based on their health status (HIV/AIDS) was first declared illegal by court.