Court/Judicial body: Constitutional Court of the Russian Federation
Date: 12 May 2006 CRC
Provisions: Article 9: Separation from parents Article 10: Family reunification
Other international provisions: European Convention on Human Rights, Articles 3 (prohibition of torture, inhuman or degrading treatment or punishment), 8 (right to private and family life)
Domestic provisions: Constitution of the Russian Federation, Article 12 (supreme value of rights and freedoms), 5(4) (priority of international agreements), 19(2) (non-discrimination), 38(1) (protection of the family), 41(1) (right to health), 55(2) (universal human rights), 62 (foreign nationals and stateless persons equally with the citizens) Federal Law On the Legal Status of the Aliens in the Russian Federation, Article 7(13) (medical certificate requirement) Federal Law on the Order of Entry to the Russian Federation and Departure from the Russian Federation, Article 27 (ban on re-entry following deportation)
Background: An HIV-positive Ukrainian national, X, married a Russian citizen. The couple had a child, who also became a Russian citizen. X applied for temporary residency in Russia, but was refused for failure to include a medical certificate with his application. Notably, if a person presents a certificate stating that he or she is HIV-positive, deportation procedures are immediately initiated and he or she is then barred from entering Russia for five years from the date of deportation.
Issue and resolution: Immigration, separation of family members, discrimination against persons with HIV. The court found that a foreign citizen who is HIV-positive can be lawfully deported from Russia, and that the Government’s desire to remove a foreign citizen based on health condition prevails over that citizen’s family relationships.
Court reasoning: Human rights and freedoms may be limited to protect the foundations of the Russian constitutional system, including health security. With this in mind, the Court found that the public health goal of reducing the spread of HIV could take precedence over X’s right to remain in the country with his spouse and child. As such, the Government’s power to deport X also trumped the child’s right not to be separated from X under the Convention on the Rights of the Child. The Court found further support for this position in the case law of the European Court of Human Rights, which according to the Court demonstrated flexibility and an individualized approach to cases concerning deportation of HIV-positive aliens.
Excerpt citing CRC and other relevant human rights 4.1. […] State coercion measures and restrictions imposed on aliens with medical conditions applying for residence in Russia (which are challenged by Ukrainian citizen X’s complaint) may affect the rights of both the applicant and his family. According to the Article 9 (1) of the Convention on the Rights of Child, States parties have a duty to ensure that the child is not separated from his/her parents against his or her will, except where competent authorities by virtue of a court decision on the basis of law determine that such separation is necessary in the interests of the child. Moreover, Article 10(1) of the same states that applications by a child or his/her parents to enter or leave a State party for the purpose of family reunification should be dealt with primarily in a positive, humane, and expeditious manner. As a result, States parties must ensure that the submission of these requests does not have adverse consequences for the applicants and their family members. However, despite these provisions, Article 9(4) of the Convention allows for the separation of a child from his/her parents as a consequence of a decision of a competent State party institution, such as an expulsion or deportation order.
Follow up: In 2009, the Constitutional Court reached the same conclusion in a very similar case, refusing to issue a residency permit to an HIV-positive man with a Russian wife and child. This case was subsequently appealed to the European Court of Human Rights, which ruled that Russia had unlawfully discriminated against the man in violation of his right to private and family life and the prohibition on discrimination under the European Convention on Human Rights. The case is Kyutin v. Russia. To date, however, no changes have been made to reflect this ruling in Russian immigration legislation. Multiple-entry visas and stays of more than three months require a negative HIV test result, and foreign nationals found to be HIV-positive are still deported.
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Under Article 9 of the Convention, children have the right not to be separated from their parents unless it is in their best interests. Article 10 further specifies that an application by a child’s parent to enter a country for the purposes of family reunification should be handled “in a positive, humane and expeditious manner.” Here, deporting the parent of a child for solely health-related reasons would appear to be a violation of both the child’s right to be raised by his or her parents and Russia’s obligation to facilitate family reunification.
Citation: Определения Конституционного Суда РФ от 12.05.2006 г. №155-0
Link to full judgement: http://www.ksrf.ru/Decision/Pages/default.aspx