Kiyutin v. Russia

K was born in the Uzbek SSR of the Soviet Union and acquired Uzbekistan citizenship following the collapse of the USSR. In October 2002, K’s brother purchased a house in the Oryol Region of Russia. In 2003, K, his half brother and their mother moved into this house. In July 2003, K married a Russian national and they had a daughter in January 2004. In August 2003, K applied for a residence permit, which required him to undergo a medical examination for which K tested positive for HIV. K’s residence permit application was refused because of K’s positive HIV test. This refusal was upheld by the Oryol Regional Court on 13 October 2004. In April 2009, K filed a new application for a temporary residence permit. On 26 June 2009, the Oryol Region Federal Migration Service rejected K’s residence application based on s 7(1)(13) of the Foreign Nationals Act, which restricts the issuance of such permits to foreign nationals who cannot prove their HIV-negative status. K’s appeals against this order were rejected.

K applied to the ECtHR alleging that Russia had discriminated against him on account of his health status in connection with his residence application in violation of Articles 8, 13, 14 and 15 of the ECHR. In particular, K alleged that the rejection of his residence permit disrupted his right to live with his family and was disproportionate to the legitimate aim of the protection of public health.

The Government replied that K still lived in the Oryol Region with his family and that he had not been deported. Therefore the refusal of a residence permit did not interfere with his right to respect for family life, and even if it did, the interference was justified under s 7(1)(13) of the Foreign Nationals Act. The Government further argued that any such interference was also justified by Russia’s concern over the spreading HIV epidemic.

K countered that he had not yet been deported because of the ‘wait and see’ attitude of the Government, which was merely awaiting the outcome of the various legal proceedings. K also claimed that the Russian courts presumed that K presented a grave health threat, but that the courts did not analyze his lifestyle or explain how K posed such a threat.

INTERIGHTS intervened as a third party and submitted that the general non-discrimination provisions of key human rights treaties were interpreted as prohibiting discrimination on the basis of HIV status. They argued that people living with HIV should benefit from the prohibition of discrimination on the basis of a disability as established under the ECtHR’s case law and in other legal systems. With regards to anti-discrimination standards, people living with HIV formed a particularly vulnerable group, along with, for example, Roma and homosexuals, which gave states a narrower margin of appreciation with regards to discriminatory practices. One possible justification for K’s unequal treatment, the public health threat, may justify differential treatment. However, INTERIGHTS pointed out that the evidence showed that HIV-related travel and immigration bans were not effective in preventing the spread of HIV. Another possible justification for K’s unequal treatment was the public cost rationale but it was noted that the ECtHR had previously held that insufficient resources is not a justification for adopting health policies based on arbitrary criteria.

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

(1) the complaint regarding the refusal of a residence permit is admissible but the remainder of the application is inadmissible;

(2) this case fell ‘within the ambit’ of Article 8 because the concept of ‘family life’ must include the relationships arising from a genuine marriage in which K’s child was born;

(3) a distinction made on one’s health status, such as HIV infection, is covered by the term ‘other status’ in Article 14’s text, therefore Article 14, taken in conjunction with Article 8, applies to this case;

(4) people living with HIV are a vulnerable group, therefore, the Government’s decision to treat the group of HIV infected people differently should only be given a narrow margin of appreciation by the Court;

(5) the Government should also be given a narrow margin of appreciation because excluding HIV-positive applicants from residence is not an established European consensus;

(6) HIV-related restrictions on prospective long-term residents is not effective in preventing the spread of HIV;

(7) the Government did not convincingly establish that K would represent a financial burden to the State;

(8) while the protection of public health is a legitimate aim, the Government failed to introduce compelling arguments showing that this aim was furthered by excluding K’s residence application due to his health status;

(9) in light of the foregoing, the Government overstepped the narrow margin of appreciation afforded to it in violation of Article 14, taken in conjunction with Article 8;

(10) the Government must pay K EUR 15,000 for non-pecuniary damages and EUR 350 for costs.

[Adapted from INTERIGHTS summary, with permission]