At the 112th Session of the Committee on the Elimination of Racial Discrimination (CERD), the CERD concluded its consideration of the combined twenty-second and twenty-third periodic report of Qatar. During the meeting of the 18th April, Committee experts asked questions about mandatory HIV testing for migrant workers and the sponsorship or kafala system.
Contrary to Qatar’s claims to be moving towards “full, inclusive, and accelerated” development, labor violations persist within Qatar’s migrant worker system. According to different NGOs operating for the defense of human rights, there are persistent violations of foreign labor rights. Specifically, the challenges faced by migrant workers encompass recruitment fees, wage theft, insurmountable debt leading to shattered aspirations, and abuse by employers empowered by excessive authority, at times culminating in conditions tantamount to forced labor.
Nonetheless, the signed agreement with the International Labour Organization (ILO) entails the commitment of Qatar to crucial reforms. While the Committee welcomed some evidence of reform, power imbalances persisted. In particular, the Committee was concerned that the Ministry of Labour continued to require a letter of resignation signed and stamped by the employer. This fear has reason to be expressed: in fact, according to the ILO’s opinion, many workers still face hurdles in leaving jobs and moving to new ones, including retaliation from their employers, such as canceling workers’ residency permits or filing false “absconding” charges against them. Therefore, even if kafala laws have been amended or reformed, little has changed and workers report conditions that experts say amount to forced labor. This is also confirmed by many journalistic surveys, including that of the well-known newspaper. All of the workers interviewed by the Guardian worked seven day weeks and had passports confiscated by their employer. Also, many women workers reported being subjected to violence and sexual abuse. Most had to pay recruitment fees to get their jobs.
In addition, the CERD asked for clarification on another important issue: the widespread practice of mandatory HIV testing of migrant workers. In fact, Qatar is one of the few countries that require HIV testing or disclosure for entry, study, work and residency permits. Regrettably, it is a practice still used in the Gulf countries – such as Bahrain, Kuwait, Oman, Saudi Arabia, United Arab Emirates, Yemen – which involves discrimination of migrants on the basis of their HIV status. Indeed, the discussed practice is used by these countries to prevent people with HIV from legally entering, transiting through or studying, working or residing in a country solely based on their HIV status. In particular, according to a recent report of the United Nations Programme on HIV/AIDS (UNAIDS), Qatar denies residency permits (for stays longer than 90 days) on the basis of HIV status and deports non-nationals living with HIV.
HIV-related travel restrictions undermine human rights and freedoms of people enshrined in international treaties and national constitutions, such as freedom of movement and choice of residence, access to and enjoyment of life opportunities and the ability to be united with families and to participate in social and public life. Some international organizations, such as the ILO, together with the UNAIDS and the International Organization for Migration (IOM), took a position to defend the fundamental rights of migrant workers from this policy.
This mandatory test also has an important negative impact on the rights of migrant workers. In fact, Qatar discriminates against migrant workers on the basis of their HIV status, preventing the recruitment or continued employment, or the pursuit of equal opportunities. For this reason, an Expert asked about the fate of migrant workers who had tested positive for HIV. The Qatar delegation answered that, in accordance with the Ministry of Health policy, migrants who tested positive for HIV only had access to free health care. Their words seldom match with reality : the ILO condemned the widespread procedure of denying employment visas and/or work permits based on HIV status. Furthermore, this argument cannot be considered acceptable even with regard to the reason concerning public health. In particular, the mandatory HIV testing cannot be justified under a public health argument because HIV cannot be transmitted by casual contact and the mere presence of people living with HIV in a country does not constitute a threat to public health. Also, this practice does not ensure that those infected get access to healthcare and that HIV is prevented among the general public. Therefore, it is clear that the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, who permit restrictions on some human rights based on public health concerns, cannot be invoked. In fact, such restrictions are permitted only if they are necessary and effective to address a legitimate public health goal, they are no more intrusive nor restrictive than necessary and they are not discriminatory. Indeed, mandatory HIV testing is contrary to international human rights law and violates the rights to privacy, equality before the law and non-discrimination based on health status.
Moreover, even if this practice is not discriminatory in the opinion of the Qatari delegation, it must be considered that the mandatory HIV test for migrants workers constitutes a violation of their right to privacy, enshrined in Article 12 of the Universal Declaration of Human Rights (UDHR) and in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which encompasses obligations to respect physical privacy and the need to respect the confidentiality of personal information. Additionally, the test infringes the right of every person to access employment, recognized by Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This right implies parties must guarantee equal access to employment and protect workers from being unfairly deprived of employment and it is, thus, violated when an applicant or employee is required to undergo mandatory testing for HIV and is dismissed or refused employment on the grounds of a positive result.
The European Centre for Democracy and Human Rights (ECDHR) urges Qatar to review its policy of restrictions on work visas on the basis of the HIV status of applicant migrants. In addition, the UN’s bodies responsible for monitoring compliance with the two aforementioned pacts should initiate investigation procedures against Arab Gulf countries that persist in implementing this practice, in particular Qatar, State party of the ICCPR and the ICESCR. Also, when advocating for policy reforms with the Qatari government, international organizations must exert pressure on this country to end the practice immediately, because without the elimination of mandatory HIV testing and HIV-related restrictions on entry, stay and residence, progress in Qatari efforts to end violations against migrant workers will continue to fall behind.