A/HRC/23/41
30.
Justifications for compulsory testing revolve around protection and preservation of
public health and resources in the receiving State. 50 However, compulsory testing,
especially for HIV, is not only counterproductive to the public health approach but is in
violation of the right to health. Compulsory medical testing does not consider the window
period required for an accurate test. 51 Further, in cases of false negative results, individuals
may engage in unsafe sexual practices, exposing sexual partners to increased risk. 52 False
positive results may lead to mental trauma among migrant workers, considering the stigma
that may be associated with particular health conditions. Additionally, as both their
immigration from sending States and stay in receiving States is dependent on these tests,
migrant workers may avoid getting tested, forge documents or even stop treatment,53 thus
driving the disease underground. Compulsory testing is also no guarantee against
transmission of communicable diseases once migrant workers are inside the receiving State.
31.
Compulsory testing is also inconsistent with the right to health, as it is done without
informed consent and fails to respect the rights to autonomy, privacy, dignity and
confidentiality of health information. 54 Limitations on the right to health and informed
consent, including for public health reasons, should be based on scientific evidence, must
be the least restrictive alternative available and respect human dignity, rights and
freedoms.55
32.
In some cases, even where prohibited under the laws of the sending States, outbound
migrant workers may be subjected to compulsory testing because the receiving State may
require it before granting work permits to migrant workers.56 Policies of receiving States
that require compulsory tests for exclusively incoming migrant workers may be additionally
discriminatory if similarly situated foreign nationals such as tourists or even diplomats 57
may not be required to undergo compulsory testing.
33.
Furthermore, test results are passed on to employers or recruitment agencies without
the migrant worker‟s consent,58 breaching the requirement of confidentiality and contrary to
international recommendations.59 Additionally, pre- and post-test counselling protocols may
not be followed, even when required by law. 60 A right to health approach, however,
requires that counselling, voluntary testing and treatment be treated as a health-care
continuum.61 Migrant workers who test positive for HIV may remain in an irregular
situation, making them more vulnerable to abuse by employers and less likely to access
50
51
52
53
54
55
56
57
58
59
60
61
10
Richard Coker, “Migration, public health and compulsory screening for TB and HIV”, Asylum and
Migration Working Paper I (Institute for Public Policy Research, 2003).
See A/64/272.
Phillip Nieburg and others, “Moving Beyond the U.S. Government Policy of Inadmissibility of HIVInfected Noncitizens”, A Report of the CSIS Task Force on HIV/AIDS (March 2007), p. 6.
Irving E. Salit and others, “Travel patterns and risk behaviour of HIV-positive people travelling
internationally”, Canadian Medical Association Journal, vol. 172, No.7 (March 2005), pp. 884-888.
A/64/272.
Ibid., paras. 30-31.
ILO and IOM, Mandatory HIV testing, p. 55 (see footnote 43).
John Welshman and Alison Bashford, “Tuberculosis, migration, and medical examination”, p. 282
(see footnote 44); Immigration New Zealand, “General Medical Certificate”, available from
http://www.immigration.govt.nz/NR/
rdonlyres/DE431E92-0ADE-4B5F-81F9-18DF08E5B2EA/0/INZ1007November2012.pdf.
ACHIEVE and CARAM, Health at Stake: Access to Health of Overseas Filipino Workers, 2005
Report (2006), p. 16.
WHO, UNAIDS, Guidelines for using HIV Testing Technologies in Surveillance: Selection,
Evaluation and Implementation (2001), document WHO/CDS/CSR/EDC/2001.16-UNAIDS/01.22E.
CARAM Asia, State of Health of Migrants 2007: Mandatory testing (2007), p. 41.
A/64/272, para. 93.
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