COUNSELING

 

Q. What is the Korean HIV/AIDS policy on international migrants?

A. Legal Classification of HIV/AIDS into a Communicable Disease

In Korea, HIV/AIDS is classified as a legal epidemic disease. The Communicable Disease Prevention Act designates HIV/AIDS as a legal contagious disease of Class 3 and applies all its provisions to the disease and the infected.

 

The designation was first made in 1987 in less than 2 years after the first Korean and foreign patients with AIDS were found and HIV/AIDS was a Class 2 communicable disease then. However, as some of the HIV/AIDS infected people and their advocates raises the issues of stigmatization and infringement of human rights caused by the designation of HIV/AIDS as legal contagious disease and medication for HIV/AIDS develops, Korean government lowered the legal grade of HIV/AIDS from Class 2 to Class 3 communicable disease in 1998.

 

Along the Communicable Disease Prevention Act, the HIV/AIDS Prevention Act, established in 1987, also stipulates various activities and requirements regarding the epidemic disease such as report and testing of the disease, and care and management of the infected.


1. Entry of Foreigners with HIV/AIDS for a Short-Term Stay

Generally, migrant workers with HIV/AIDS cannot enter Korea regardless of his/her sojourn status. Several laws and regulations impose limitations on their entrance.

 

First of all, the Korean immigration law (Immigration Control Act article 11 item 1-1) prohibits the entry of foreigners who are carrying an epidemic disease and HIV/AIDS is classified into a Class 3 epidemic disease by the Korean health law (Communicable Disease Prevention Act article 2 item 3).

 

Based on the Immigration Control Act article 11 item 1-1 and Communicable Disease Prevention Act article 2 item 3, the government may prohibits an entry of foreigners who are suspected of carrying HIV/AIDS anytime at their discretion.

 

The two articles of the immigration and health laws are basic guidelines on which most of the government's rules, regulations and policies are established and applied broadly to various circumstances and conditions related with immigration and HIV/AIDS.

2. Presentation of HIV/AIDS Test Results from Foreigners for a Long Term Stay before Entering

Basically, the Korean government does not require all foreigners to submit their HIV/AIDS test results before entering. But, for the matter of industrial trainees and employment-permitted foreign workers, the Korean government and agencies ask them for pre-departure HIV/AIDS test results and deny their admissions if they are found HIV/AIDS positive although laws and regulations regarding them such as Immigration Act, Guideline for Operating Foreign Industrial Trainee System, and Act on Employment of Foreign Workers do not specify the requirement of HIV/AIDS test results for them.

 

Regarding the status of sojourn term, a Korean health law (HIV/AIDS Prevention Act Article 8 item 3) designates a submission of a HIV/AIDS test record for certain foreigners. According to the law, foreigners who wish to work for money in entertainment industry, sports games and other show businesses and to stay in Korea more than 3 month (long-term sojourner) have to submit a certificate of negative reaction against HIV/AIDS before entering.

 

If the foreigners fail to submit it before entering, they have to receive a HIV/AIDS test at one of the institution the government designates within 72 hours after arrival. However, other professionals and skilled workers who are allowed to accompany their spouses such as businessmen, scholars, lawyers and technicians are exempted from the requirement.

 

In the respect that industrial trainees and employment-permitted foreigners are not allowed to accompany their spouses, they have to submit HIV/AIDS test results. For foreigners who stay in Korea for less than 91 days (short-term sojourner), there is no requirement of document of HIV/AIDS tests.

 

There have been few oppositions within the Korean society to the policies requiring HIV/AIDS test results and restricting the entrance of foreigners with HIV/AIDS, especially long-term sojourners. There was, however, a case which publicized a mandatory HIV/AIDS testing for foreigners in 2003 when a Japanese female movie star who came in Korea with C-4 short-term employment visa had to take a HIV/AIDS test to work as a TV show host for more than 3 months, which requires a E-6 entertainment visa and a submission of HIV/AIDS test result by law (Weekly Dong-a, 2003).

 

Although she and her agent complained about the requirement, there were few responses from the public and the government.

3. Entry of Foreigners with HIV/AIDS for a Long-Term Stay

From 3 days to a week.


1. Requirement of HIV/AIDS Test Results from Long-term Stay Foreigners

There is no requirement of mandatory HIV/AIDS testing for most foreigners who are allowed to stay or work in Korea. For some foreigners, however, an HIV/AIDS testing may be a mandatory requirement. According to health laws (Communicable Disease Prevention Act article 3 and HIV/AIDS Prevention Act Article 8 item 1 and 2) people who are engaged in occupations that are likely to be infected and spread sexually transmitted diseases (STDs) have to take a STD related test.

 

As a result, every female who work in sex business has to receive regular medical check-ups for STD and HIV at local public health centers at least every 3 months. As with Korean workers, female migrant workers in sex industry, especially E-6 visa holders who have a high probability of engagement in sex work are also obliged to take the mandatory tests. The tests are taken free of charge but the results are usually not informed to the sex workers unless there is a problem, infection of STD or HIV.

 

People with STD are treated at public health centers without charge but they are supervised and not allowed to work until the disease is cured completely (Communicable Disease Prevention Act article 30). Worrying about monetary loss coming from the test results such as an infection with STD or HIV some business owners are reluctant to have their workers receive the test (Ministry of Gender Equality, 2003). Some migrant women are also hesitant to take the test for fear of knowing the 'bad' results. For undocumented sex workers the test is out of reach.

 

Since the late 1990s as AIDS patients among migrant workers are occasionally found and the number of the cases is growing, some local health offices have given HIV tests irregularly without any specific legal basis to migrant workers whose jobs are not related with sex business. But neither migrant workers nor NGOs welcome this activity as the method of testing does not guarantee migrants' privacy and sometimes the test is done inhumanely. For example, health officials may visit a factory and ask the manager to gather all migrant workers together and then give HIV tests without informing clearly what the test is all about and asking migrant workers' opinions.

2. Possibility of Stay for Foreigners Found HIV/AIDS-Infected after Entering

Basically, foreigners with HIV/AIDS cannot stay in Korea. If they are known to be infected with HIV/AIDS by any reason they are subject to an immediate deportation regardless of their sojourn statuses and purposes. According to an immigration law (Immigration Control Act article 46 item 1-2), the Korean government may deport a foreigner who is found to be carrying epidemic diseases including HIV/AIDS.

 

The government's measure against foreigners living with HIV/AIDS, which largely resort to deportation, is in striking contrast to its way to treat domestic people with HIV/AIDS. The Korean government does not regulate their everyday activities but takes care of all the medical expenses involved in the treatment for them.

 

There are few official services and policies provided by the Korean government to prevent migrant workers from HIV infection. There is little concern about the sexual life of migrant workers within the government, which tends to regard the limited opportunity of migrant workers' sexual activity as their personal problem. Sex education for migrant workers is rare. There are few services available for migrants living with HIV/AIDS. What they usually do is deter HIV infected foreigners from entering Korea and deport HIV infected migrants to their home country as soon as possible.

 

In non-governmental sector, there are two organizations that take an active part in HIV prevention, care and support for migrants: KUISC (Korea UNAIDS Information Support Center) in Seoul and Tabitha Community in Dongducheon, Gyenggi Province. KUISC was established in 2003 in consort with Korea anti AIDS Federation, Ministry of Health and Welfare, UNDP and UNAIDS and has been running diverse programs for foreigners in Korea such as HIV counseling, peer education, community-based care and support, distribution of HIV prevention materials and fund-raising. Tabitha Community founded in 1989 near a US military base provides a shelter, education and counseling especially for female migrant workers engaged in sex business, and conducts a campaign for their human rights and against human trafficking.