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.