Human rights court set for judgement on entry and residence rights of HIV-positive non-Russians

Tomorrow, human rights judges will reveal their decision on a complaint which highlights the entry and residence rights of HIV-positive non-Russian nationals.

Novruk and Others v. Russia (nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14)

The applicants are Mikhail Novruk, a Moldovan national who was born in 1972; Anna Kravchenko, a Ukrainian national who was born in 1982; Roman Khalupa, a Moldovan national who was born in 1974; Irina Ostrovskaya, an Uzbek national who was born in 1953; and V.V., a male national of Kazakhstan who was born in 1983.

The first three applicants settled in Russia following their marriage to Russian nationals. They all have children born of those marriages who have acquired Russian nationality by birth.

The fourth applicant, Ms Ostrovskaya, was taken to live in the Uzbek Soviet Socialist Republic of the USSR by her parents in 1966 and acquired Uzbek nationality following the collapse of the USSR.

After the death of her parents and her son’s move to Russia in 2006, she remained alone in Uzbekistan. She decided to move to Russia in 2011 to follow her extended family (notably, her son and his family, who have valid Russian residence permits, and her sister and her husband, who are Russian nationals).

The fifth applicant, V.V. moved to Russia in 2006 to study and has been living since 2007 with his same-sex partner, a Russian national.

All five applicants wished to obtain residence permits in Russia. To complete their application, they were required to have a medical examination which included a mandatory test for HIV infection.

After they tested positive for HIV, the migration authorities refused their applications by reference to the Foreign Nationals Act, which prevents HIV-positive foreign nationals from obtaining residence permits.

In the cases of Khalupa, Ostrovskaya and V.V., the hospitals reported their test results to the relevant authorities and their presence on Russian territory was pronounced undesirable. Such a decision can be made on the basis of the provisions of the HIV Prevention Act and of the Entry and Exit Procedures Act, which mandate deportation of aliens who are discovered to be HIV-positive.

The applicants challenged the decisions to refuse them residence permits in court proceedings.

Novruk’s and Ostrovskaya’s challenges were dismissed in November 2010 and September 2012 respectively by the national courts, on the ground that the migration services’ decisions to reject their applications had been in compliance with the law, namely the Foreign Nationals Act.

As concerned Khalupa, the courts refused to order a new review of the undesirability decision in December 2012, arguing that there was no legal provision explicitly providing for the possibility of such a review.

Later on, in January 2014, his request to the Consumer Protection Authority to review the undesirability decision and to allow him to visit his children in Russia was refused on the ground that it was not competent to review decisions issued by the migration services.

Lastly, as concerned Kravchenko and V.V. the courts held in a first round of proceedings that their personal ties to Russia carried greater weight than an alleged threat to public health and directed the migration service to make a new assessment of their applications.

However, Kravchenko’s application for a residence permit was ultimately refused in February 2011 and V.V.’s presence in Russia was pronounced undesirable again in March 2013. The applicants’ HIV positive status was cited as the reason for those decisions, once again in view of the applicable legal provisions.

In a further round of proceedings concerning V.V. two new grounds for refusing his claim for residence were cited: firstly, in August 2013 the Court of Appeal referred to an increased risk of unsafe behaviour on his part because he had refused to name his former partners; and, in February 2014, the Regional Court found that he could transmit HIV by using shared dormitory facilities in a student hostel.

The Supreme Court ultimately refused V.V. leave to appeal to the Supreme Court in April 2014.

Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life and the home), all five applicants allege that they have been discriminated against because they are HIV-positive.

Also relying on Article 34 (right of individual petition), Mr V.V. complains that, following the communication of his case by the European Court of Human Rights to the Russian government, his partner was summonsed to the prosecutor’s office for an interview so as to intimidate the couple.

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