The battle over HIV tests for foreign English teachers

From this article, illustrating this story

There were a few things I've been meaning to blog about that I needed to pull out and dust off before I felt I could talk about the announcement last week that HIV tests will continue for E-2 visa holders. I decided a chronological review might work best - starting from the beginning of 2009. I'll save what came before that for another day. 

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In February 2009, Benjamin Wagner submitted a complaint regarding the drug and HIV tests required for E-2 visa holders to the National Human Rights Commission, and in concert with this, ATEK encouraged people to submit complaints as well. This was done in part to draw attention to Bill 3356, which, if passed, would mandate HIV/AIDS testing of all foreigners applying for work visas in Korea. At the time, ATEK president Tom Rainey Smith (who has been active with Amnesty International in Korea on migrant workers' rights) told me he hoped the challenge would benefit other foreigners besides English teachers.

 [For entertainment purposes, here's a link (first result) to Anti English Spectrum's response to the claims (which was not so different from the ministry of justice's response, but then, AES was present at the immigration policy meeting where the HIV tests were concocted in the first place, so that's no surprise), where AES manager M2 almost blows a gasket after a certain Korea Times reporter stopped by and said that ATEK's discrimination claims did have merit. After several nonsensical comments connecting English teachers to AIDS (drawn from this article), the intrepid reporter backs off, saying there's no need to argue, and adding: "Please round up lots of white molesters." Classy. AES manager Lee Eun-ung also penned an op-ed in the Kyunghyang Sinmun later that month arguing against the English teachers' claims.] 

 In March 2009, Andrea Vandom turned in a letter of protest instead of an AIDS test at immigration, but they renewed her E-2 visa anyway, and then, realizing their "mistake," threatened to "deport her". In June, the Korean Public Interest Lawyers Group Gong-Gam filed a petition with the constitutional court on behalf of Vandom arguing that the tests had been “imposed with no reasonable grounds” and were “based on vague prejudice and bias that foreign English teachers have disordered sex lives”. The Court accepted the case in July 2009. That article also stated that the NHRCK was supposed to hold a conference in July on the matter the E-2 visa requirements, but we're still waiting for that (perhaps this or this is why). 

Also in early June, UN Secretary General Ban Ki-moon advised Korea to remove its HIV entry restrictions. 

 In September 2009, the Korea Times reported that "Korea is moving to scrap its policy of banning foreigners with HIV/AIDS [...] in the face of protest from foreigners and legal experts against what they call discriminatory measures." It said that E-2, E-6 and E-9 workers needed HIV tests. However,

"There will be no changes for E-6 visa applicants. We do not deal with non-professional workers as the Labor Ministry is responsible for AIDS tests on E-9 visa applicants," Ahn Kyu-seok, the KIS spokesman told the Korea Times. "However, if the Constitutional Court rules that making foreign instructors submit documents on HIV tests is unconstitutional, we may have to scrap the requirement," Ahn added.

Interesting that E-6 visa applicants were to face no changes, but not particularly surprising (considering recent events) that they seemed reluctant to change the E-2 HIV tests even in the face of a possible constitutional court ruling. In early December, migrant worker activists filed a petition against mandatory HIV tests with the NHRCK:

The petition, submitted by five groups, including the HIV/AIDS Human Rights Solidarity Nanuri+ and the Migrants’ Trade Union, says South Korea infringes on the human rights of foreign migrants by conducting tests for HIV on them without their knowledge or consent. The coalition made the complaint to coincide with World AIDS Day.

On January 4, 2010, it was announced that Korea had lifted travel restrictions on HIV positive foreigners. A subsequent closer look at this policy a few days later by the Korea Herald, turned up less than hopeful responses from Ministry of Justice spokesperson Ahn Gyu-seok, who said,

"Originally, we deported foreigners who tested positive for HIV. And they were not allowed to visit Korea again. But in light of the Jan. 1 announcement, the rule is just getting more flexible, meaning that the rule is not changed," the spokesperson said.

He then said that non-dangerous HIV+ foreigners could remain in Korea, but that if the Ministry of Health judged them to be dangerous, they could be deported. According to Park Il-hoon of the Ministry of Health,

"If foreigners who test positive for HIV negatively influence public health, we will restrict them from revisiting Korea. For example, in the case of HIV-positive foreigners having sexual relationships within Korea is one example of when we would restrict someone," said Park.

The article also noted that National Assembly representative Lee Sang-jun, who drafted Bill 3356 (which would mandate HIV/AIDS testing of all foreigners applying for work visas in Korea) still hoped the lifting of the HIV travel ban would not affect the passing of his bill. According to this Korea Herald article, which looks at how Education officials have urged the Ministry of Justice to "reinstate deportation and to institute further restrictions in the form of annual re-tests for HIV,"

In a reply to proposals from national, provincial and municipal Education Review Committees in February and March [2010], the Ministry of Education agreed to petition the Ministry of Justice to revise regulations to give legally binding force to re-testing requirements already in place at some public schools.　

If the MOE is looking for "legally binding force," that seems to suggest they don't already have it, which makes one wonder about the annual HIV re-testing requirement already in place to renew contracts for SMOE and Ulsan MOE. In mid July, the Prime Minister's office announced they were going to make things easier for E-2 visa holders (just as tougher new regulations were being announced) but added that

the government decided to retain the current system obligating foreign language instructors to get an HIV test, citing a public survey in which the test was supported by 80.7 percent of ordinary citizens.

The Korea Herald explained further:

Concerns were highlighted in a press release from the prime minister’s office on July 12 informing people of the results of a survey on whether or not HIV testing of foreigners should be abolished. In two surveys -- one of 500 men and women over 20, the other of 50 professionals (teachers, doctors) -- the results overwhelmingly indicated the desire to continue testing foreigners for HIV -- 80.7 percent for the former and 82 percent for the latter.

[AES responded to this with the post "We stopped the claim that AIDS tests for native speaking teachers should be abolished!" (here, first result)] The Herald also noted that

The Ministry of Justice recently announced a “revision of HIV infected people regulations.” According to the revised regulations, while HIV tests for foreign teachers on E-2 visas will remain in place, a positive test result will not automatically result in visa cancellation or deportation. 

According to Ahn Kyu-suk, a public relations official with the Korea Immigration Service, though the rules have been slightly changed, the safety of Korean citizens is still the main concern. Ahn said that deportation can still occur if the health administration reports someone being a potential hazard to societal health. 

Of note is also the fact that according to the Ministry of Justice there has yet to be any reported cases of teachers testing positive for HIV.

Actually, according to a Simin Ilbo article from October 2009 titled "From AIDS to Drugs, Native Speaking Teachers," three teachers in Gyeonggi-do were found to be HIV+. In 2008 a female teacher working at a middle school in Gapyeong was found to have been infected with HIV by her husband, and after the truth was discovered, she was deported 9 days later, while in early 2009 two native speaking teachers set to work at middle schools in Icheon and Paju were fired after testing positive for HIV during their health screening. The Herald article continues:

The MOJ’s move to ease restrictions on HIV testing is considered in-line with the government’s January pledge to remove restrictions for foreigners based on HIV status. Education officials, however, are urging the MOJ to reinstate deportation and to institute further restrictions in the form of annual re-tests for HIV. [...] 

An official with the KIS meanwhile said that as far as their regulations go, teachers on E-2 visas only need to get a HIV test upon the initial issuance of an E-2 visa, not for the renewal of a contract.

While EPIK is toeing the line on this, SMOE and Ulsan MOE are not, and the latter is facing a challenge at the moment because of

one case where a teacher wanted a contract renewal, but did not agree with having to be tested again for HIV. The case has been in arbitration for a year now. Kyung Hee law professor and U.S. attorney Benjamin Wagner represents the teacher who is bringing the challenge.

Meanwhile, the Korea Times reported in August that

The National Human Rights Commission of Korea is likely to conclude that the nation’s visa rules requesting foreign English teachers to submit AIDS/HIV test results infringes upon human rights. 

Lee Sung-taek, an inspector of the state human rights agency, said Tuesday the agency has completed investigations of petitions, filed by a number of native English-speaking teachers who claim the current E-2 or English teaching visa rules are “discriminative” against them. 

“The investigation report will be referred to the agency’s committee next month, and the committee, consisting of three permanent members, will decide whether the AIDS check, imposed on native English speakers, is against human rights or not,” Lee told The Korea Times. “(As an inspector), I am positive that immigration authorities would be advised to revise the controversial visa regulations regarding the AIDS check-up, although immigration authorities are not obliged to follow the human right agency’s decision.”

The article also notes that the NHRCK review "also affects E-6 (entertainers, artists, athletes and models) and E-9 (non-professional employees) holders, who are also subject to compulsory AIDS tests." 

 Then on October 25, the Joongang Ilbo published an article (in Korean) titled "'Compulsory AIDS tests' for foreigners to be abolished at the end of the year. UN points about 'violation of human rights' accepted; Native speaking teachers still need to be tested." It was pretty much copy and pasted by the Chosun Ilbo as well. The Joongang Ilbo's English site translated most of it under the title "HIV rule to be lifted for E-6 visa holders."

The Korean government is moving to revise visa regulations on HIV/AIDS ahead of the upcoming G-20 Summit in November, to match global standards on the issue, according to the Ministry of Health and Welfare.

[I'm sure the G-20 delegates will appreciate the fact that the one visa which still requires HIV tests applies to people from the US, Canada, England, South Africa, Australia, China, and Japan.]

Currently, foreigners with E-6 visas - entertainers, athletes and performing artists - staying in the country for more than 90 days must submit an HIV-negative confirmation document prior to entering the country. Those without the document must take an HIV test within 72 hours of their arrival in Korea. 

The revised regulation will make E-6 visa holders exempt from the requirement and will come into effect at the end of December, said the Ministry of Health and Welfare.

The Korean version adds that,

Related to this, at the end of September the Ministry of Justice also announced legislation to amend enforcement regulations of the Immigration Control Law that would abolish confirmation of foreigners' HIV negative status. Until now, foreigners entering the country to work in hotels or adult entertainment businesses needed to submit a confirmation of HIV negative status in order to receive an E-6 visa and register [at immigration offices], but this procedure will be eliminated. This procedure will also be eliminated for industrial trainees when they receive permission to extend their stay, and for sailing crew when they register [at immigration offices]. However the process of requiring the submission of a health check confirming whether they are infected with AIDS will continue to be required for native speaking teachers when they apply for visas.

The English version notes that the industrial trainees are on D-3 visas, and tells us that "E-10 visa holders [...] are foreign sailors employed by Korean companies. " It also adds that "The policy will remain in place for E-2 visa holders - foreign language teachers - because of strong public opposition" [emphasis added]. The part in italics is not in the Korean language article. Interesting that the need to continue testing E-2 visa holders didn't seem to require any extra comment or justification in the Korean version. 

As for the reasoning behind the Ministry of Health's decision to remove the tests, it quotes ministry official Jeong Eun-gyeong: “We’ve decided to ease the rules as HIV is not transmitted through air or water but through human contact most of the time.” She also notes that abolishing the tests was agreed to in order to meet international standards. 

The English article ends by noting that "About 70 HIV cases among foreigners are reported every year," illustrated by this chart:

 

The Korea Times also reported on this, noting that 4000 E-6 visas are issued every year, but it states instead that it is E-9 visa holders under the employment permit system who will no longer have to submit results or be tested to renew their residency - which differs from the D-3 and E-10 visa holders mentioned in the Joongang Ilbo article. It also notes that the Ministry of Justice's September repeal of the automatic deportation regulations for people on E-6 and E-9 who test positive for HIV has been submitted to the National Assembly for confirmation. It's interesting that E-9 visa holders were brought into this, considering that the Ministry of Justice stated in September 2009 that E-9s fell under the jurisdiction of the Ministry of Labor. 

While the Joongang Daily added the part about "strong public opposition", the Korea Times went further in laying out the reasons for E-2s continuing to be tested.

“Education is considered a very intimate relationship. According to an unofficial survey by the Prime Minister’s Office, the majority of parents wanted solid evidence of their children’s teachers’ HIV status,” said an official of the Ministry of Education, Science and Technology. 

“The continuation does not mean the government regards foreign teachers to be HIV positive or have the potential of transmission ― it is just intended to assure the parents. We are considering revisions in this area, too,” he added.

In other words, the MOE is saying to foreign English teachers, "We know you don't have AIDS, the tests are all a show for the parents so just play along." Cute. As for the "intimate relationship" of education, I thought foreign teachers had no "affection" for Korean students, unlike Korean teachers (though using the word "intimate" in English also conjures up other kinds of relationships between teachers and students; perhaps those teachers should learn from education officials). 

 When it comes to the claim that the MOE is "considering revisions" in their HIV testing policy, the Korea Herald article from August seemed to make that pretty clear. That article also has an interview with an official at the National Institute for International Education Development, a division of the MOE, which oversees EPIK,

“For the extension of visa or renewal, submitting an HIV test should be mandatory, but since we have to listen to what the MOJ is instructing, we changed our regulations.” 

Jung added that negotiations with the MOJ on the matter were continuing and that as far as the NIIED was concerned, HIV test submissions, deportation, and re-testing should be enforced because of concerns expressed by parents and doctors. [...] 

Citing the survey as one reason for keeping HIV testing regulations rigid, Choi Hong-jun, deputy director of EPIK, said that even though the MOJ has revised its regulations, negotiations are underway to reverse the new policy.

Those negotiations may include the MOE filing a petition with the MOJ to make the already existing annual HIV retests at schools in Seoul and Ulsan "legally binding." Perhaps what we are seeing with E-2 HIV testing being frozen in place, while HIV tests for other foreign workers are phased out, is part of a compromise between the two ministries. Or perhaps not - only time will tell. 

Anti English Spectrum was thrilled with the announcement of the continuing HIV tests for English teachers, and sent a report to the Ministry of Health and Welfare the other day titled “Worries about and a demonstration of support for keeping AIDS tests in place for foreign teachers on E-2 visas.” M2 noted that after sending the report, the disease policy (division) of the Ministry of Health and Welfare contacted him, and he also firmly conveyed information about native speaking teachers' "fabrications and false claims." In the report itself, AES claims they represent "parents of students and all citizens," and write "Because it allows for sovereignty over protection of citizens’ health and human rights and managing the safety of children, we are in support of the current system." They also declare that the Ministry of Health and Welfare’s policy is also in accordance with the demands by many parents for stronger management of foreign teachers, and they use the results of the July 2010 survey by the Prime Minister's Office to support this. 

They also make a request: "However, we ask that you should be vigilant against the distortions of some native speaking teacher groups who will express their discontent regarding this policy. [...] Ministry of Health and Welfare, do not by blinded/fooled by them." 

I get the feeling someone watched Revenge of the Sith a few too many times. 

 For those with their vigilance powered up, ATEK's statement is here (I hope they sent one along to the Ministry of Health as well). And true to the desires of their first president, the process they helped start has indeed benefited other foreigners in Korea. 

Just to show how much attention AIDS gets in Korea, depending on the story, there are almost 100 news reports about the 19 year old HIV+ girl in Busan who sold sex to about 20 men, though the second part of the story hasn't been widely reported in English:

The court rejected the arrest warrant when it was revealed that she is mentally disabled and has the mental development of an eight year old. A prostitution victim protection organization “Sal-lim” and psychiatrist pointed out that in light of this level of development, it is not possible that can be held responsible for criminal action or for taking these actions on her own. When the arrest first took place, the woman's father had told the police that his daughter was forced to sell sex by someone else, but police officers chose to charge her with a crime.

And just for fun, I couldn't help noticing that YTN published an article stating that 1 in 22 African Americans are at risk for HIV a week after the story of 'Quincy Black' broke.