Strasbourg says refusing residency to HIV-positive person violates Convention

On 10 March 2011 the Grand Chamber of the ECtHR held that denying a HIV-positive person residency on account of their health status breaches Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

Kiyutin v Russia concerned an Uzbek national who was married to a Russian citizen, with whom he had a child. As required by Russian law, Kiyutin underwent a medical examination as part of his residency application. The examination showed that Mr. Kiyutin was HIV positive and his application for residency was refused on this basis.

The Court found that the applicant's health status could be classed as an "other status" within the meaning of Article 14, deciding that "a distinction made on account of one's health status, including such conditions as HIV infection, should be covered - either as a form of disability or alongside with it - by the term "other status" in the text of Article 14 of the Convention".

In assessing whether the difference of treatment was objectively justified, the Court held that "if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State's margin of appreciation is substantially narrower and it must have weighty reasons for the restrictions".

They outlined that since the 1980s, people living with HIV/AIDS have been stigmatised. Although the protection of public health was a legitimate aim, the Court was unpersuaded that this aim could be attained by excluding the Applicant from residence. In this regard they considered evidence from international bodies such as the World Health Organisation and the United Nations High Commissioner for Human Rights.

Human rights organisation Interights submitted a third party intervention to the Court for the hearing, the content of which was persuasive upon the decision of the Court. Interights noted that international human rights bodies such as the UN Committee on Human Rights and the Committee on Economic, Social and Cultural Rights have all interpreted the principle of non- discrimination in international human rights treaties to include discrimination against persons with HIV/ AIDS on account of their health status. Please click here to read their third party intervention.

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