If you are a foreigner residing in South Korea who has ever toyed with the idea of determining your HIV/AIDS status, then prepare yourself for an inevitable and disturbing dilemma. That is, will the risks of getting an HIV test outweigh the risks of not getting one?

In Korean hospitals and medical clinics, a foreign patient's anonymity and confidentiality are by no means guaranteed, especially when it comes to HIV testing. In fact, hospitals and clinics will report the names of foreigners found to be infected with HIV or AIDS to immigration, resulting in sure and swift deportation.

In 1987, Korea adopted the AIDS Prevention Act which gives a legal basis for various activities of AIDS prevention and ensures the confidentiality of Koreans with HIV/AIDS. However, Korea still lacks provisions that protect foreigners with HIV/AIDS from the leaking of private health information, invasive medical requirements for employment, and forcible eviction.

Under Article 11 of the Immigration Control Act, the Ministry of Justice has the authority to prohibit entry into Korea of people carrying "epidemic diseases," although the types and nature of diseases are not enumerated. As of 2007, Korean immigration has deported over 521 foreigners who were discovered to be infected with HIV or AIDS, regardless of their legal status.

According to the European AIDS Treatment group, a total of 74 countries have some form of HIV-specific travel restrictions. South Korea is...

With a Masters in Education, Andrea Vandom went to Korea to teach university-level English. Since early 2006 she created textbooks and curriculum, taught English to university and adult students, and invented a class where her students learned English by playing sports. She loved her students and co-workers enough to renew her two-year contract in 2008. Needless to say, not someone Korea would do well to threaten with expulsion.

But that's precisely what happened, because Andrea, who had been in Korea for three years without such a requirement, refused to take an HIV test in order to continue working there. She was subsequently threatened with deportation.

As of December 2007 (when the Korean Ministry of Justice established the policy in a memo), foreign workers are required to take HIV tests within three months of arriving in Korea, and if they are found positive, are deported. Foreigners who acquire HIV while in Korea, if found out, will be deported, usually within a week. Hospital policy is to submit testing results to immigration offices to expedite the expulsion of HIV-positive expats. Foreigners with HIV have no options for seeking out medical treatment; the best they can do is get tested at the one anonymous testing center and fly to places like Thailand in search of medicine.

"My visa renewal came up in March 2008," writes Andrea. "I heard of the new regulations through the grapevine. I thought surely they wouldn't be targeted towards me - I'd been living and working there for 2 years. I cleared immigration the first time, had good standing with my university, and my job in no way was related to the transmission of AIDS.

"Given how long I was in the country already, it was illogical to require me to submit these documents. I was being pinpointed as a disease carrier simply because I am not of Korean blood. Suddenly they saw me as morally suspect and a threat to the community because I was a foreigner. These rules attach a stigma to HIV carriers, discourage voluntary testing, and spread the disease."

Immigration would contact Andrea or her employer in some way about once a week. They threatened deportation several times if paperwork was not submitted by a certain date. "They had invited me here, allowed me to work and live," Andrea writes. "Then the next day, I am an AIDS risk and a criminal. Really?"
It Gets Judicial

United Nations Secretary General Ban Ki-Moon, arguably Korea's most powerful leader, has called for an end to HIV-related travel restrictions. Korea remains one of the few countries that ban HIV-positive persons for entry, residence, or migration, alongside Brunei, China, Namibia, Oman, Qatar, Sudan, the United Arab Emirates, the United States, and Yemen. Both the US and China are in the process of removing travel restrictions for people living with HIV/AIDS.

In reference to Korea's testing policies, Korean Ministry of Justice official Lee Bok-nam states, "Foreigners do not have the right to demand that a country guarantees equal rights with the nationals of the country regarding entry into the country."

What Lee overlooks are the binding international human rights treaties that Korea has signed: the International Covenant on Civil and Political Rights, which binds it to guarantee the right to equal protection of the law to all people, regardless of race, ethnicity, nationality, sex, or any other status; and Korea's 2006 renewal of the 2001 Declaration of Commitment on HIV/AIDS, which seeks to eliminate all forms of discrimination against people living with HIV/AIDS by ensuring their privacy and access to health services, prevention, support, treatment, and legal protection.

Last May Attorney Suh-yeon Chang, with the public interest law firm Gonggam, filed a case on behalf of foreign instructors like Andrea Vandom who hold E-2 visas. The Constitutional Court accepted the case. According to Kyung Hee University Law Professor Ben Wagner, "The Constitutional Court's acceptance of the Vandom case is mind-blowing considering that pretty much everybody thought it would be rejected. The Court has sent a very positive message to the foreign community by showing its willingness to address issues of foreigners' rights."

Prominent international organizations like Human Rights Watch, who lent their support to a complaint that Prof. Wagner lodged with Korea's Human Rights Commission concerning the tests, argue that the forced testing of foreigners and deportation based on HIV-positive status are ineffective and counterproductive measures for protecting a populous from the AIDS pandemic.

"Detection is the first step," echoes Vandom. "All people should be encouraged to get tested on a regular basis. To do this, testing should be accessible, confidential and without threat of negative consequences. The alternative is to make threats and ruin the credibility, careers and lives of people living with HIV, which discourages testing and allows undiagnosed people to continue spreading HIV. This seems to be the approach the Korean Ministry of Justice has taken."