Korea Maintains Mandatory HIV Testing Despite Lifting Travel Ban

Author: Michael Solis

31 January 2010

January 2010 has seen the travel bans for HIV-positive people lifted in two countries: the United States and South Korea. Barack Obama referred to the ban in the US as a "step that will encourage people to get tested and get treatment. It's a step that will keep families together, and it's a step that will save lives."

In South Korea, however, the lifting of the HIV-travel ban appears more like an empty gesture. While the government has announced a change in "internal policy" that allows HIV-positive foreigners to enter the country, there have been no actual legislative changes that make the decision legally binding.

The mixed message becomes especially apparent in the government's refusal to end the practice of mandatory HIV-testing of many of the country's foreign workers. What's more, because the Ministry of Justice retains its right to assess whether or not foreigners living with HIV pose a "health risk," such people may still be subjected to threats of job loss, deportation and lack of treatment. 

According to Myung-Hwan Cho, Immediate Past President of the AIDS Society of Asia and the Pacific, "Mandatory testing every year is not fair with respect to human rights. Why do foreign workers here have to be treated in a different way? If Koreans get tested in other countries, it isn't fair either."

Cho also argues that the South Korean government never exercised its prior right to ban individuals living with HIV from entering Korea. Instead, since December 2007 the Korean government has carried out a policy of deporting foreigners already residing in Korea who were found HIV-positive after compulsory testing.

That translates to little change for foreigners hoping to teach in Korea. Because the E-2 visa does not require foreigners to get tested for HIV prior to coming to Korea, the visa has essentially always allowed HIV-positive instructors into the country.

Foreigners on other visas, such as the E-6 (artistic performers) and E-9 (non-professional employment), may be tested for HIV in their home countries, but they have to be tested again in Korea after they have entered.

Kyung Hee University Law Professor Ben Wagner argues that because mandatory testing constitutes a "residency requirement," it violates foreign residents' right to equality under the Korean Constitution.

According to Wagner, "The Korean government should recognize that it is discriminating against foreigners who legally reside on Korean territory. These medical tests aren't some kind of 'entry requirement' to determine who gets in. They are being done in-country, and in many cases they are being done repeatedly."

"Foreign residents are under the protection of the Constitution of Korea," Wagner adds. "Many of them have lived and worked in Korea for years, and some of them are married to Korean nationals. But they are being required to report to national hospitals to receive medical tests that their Korean co-workers are exempt from."

Amnesty International has repeatedly called on the South Korean government to put an end to mandatory HIV-testing, arguing that "[s]creening of foreigners for AIDS or HIV status is among the prohibited discriminatory grounds in international law and has long been considered ineffective in preventing the spread of HIV/AIDS." 

Bill 3356: the threat of mandatory testing for all foreigners

From this point forward, the practice of compulsory testing in Korea may only intensify. In February, drafters will present Bill 3356 to the National Assembly calling for the mandatory testing of all foreigners who hope to work in Korea on a visa.

According to Seo Bokun, spokesperson for Assemblyman Lee Sang-jun, a drafter of the bill, "the government should prioritize the safety of our citizens amongst any other matters, so we think it was wrong for the Ministry of Justice to alleviate their regulations on allowing HIV positive foreigners from entering Korea."

As stated in Adam Walsh's article in the Korea Herald, included within Bill 3356 is a flawed statistic that originates from Anti-English Spectrum, an anti-foreigner hate group that admittedly tries to catch foreign teachers doing drugs and other "unwanted" behavior. The group submitted a petition to the Ministry of Justice claiming that an AIDS clinic in Itaewon, the foreigner's district, performed 80 percent of its tests in 2007 on foreign teachers and foreign white-collar workers.

The Korea HIV/AIDS Prevention and Support Center responded by saying the 80 percent statistic was false. Moreover, the clinic moved its location from Itaewon to Seongbuk-gu in 2006, thus proving the misguided nature of Anti-English Spectrum's claim.

When the Korea Herald asked Assemblyman Lee where he acquired the statistic, Lee said that he could not remember. "I do go over statistics at times. But in this case, since they are not the vital issue here, but rather a reference, I didn't check the facts."

Critics of the bill, like Wagner, take issue with its purpose statement that reads, "Nowadays, the number of foreigners working in Korea is increasing, but a good many have previous convictions for drug and sexual crimes or carry infectious diseases." Wagner traces the statement's origin to Anti-English Spectrum's efforts to stigmatize foreigners as AIDS-infected, sexually abusive predators. To this day, no foreigner has ever been found guilty of infecting a Korean child with HIV, and in 2008 the native English teacher crime rate was more than five times lower than the Korean crime rate. 

Korea and the world

Falsities aside, former AIDS Society of Asia and the Pacific president Cho views Bill 3356 as illogical, especially since the Korean government is striving to make the nation a global leader.

In 2011, Korea plans to host the International Congress on AIDS in Asia and the Pacific in Busan. If Korea does not change its practice of mandatory HIV-testing, it may face the threat of losing its position as host of the conference.

The global response to Korea's continued practice of discriminatory measures to keep HIV-positive foreigners from residing within its borders will be telling. If the international community commits to denying Korea the opportunity to host the 2011 conference, then perhaps Korea's policies will undergo a genuine change that honors its constitutional commitment to equality.

This article has been written in collaboration with Adam Walsh from the Korea Herald.