Justice and equality

Canada must end discrimination against immigrants living with HIV

‘Excessive demand’ regime violates UN Convention on the Rights of Persons with Disabilities
Photo: cmh2315fl

Since before Confederation, Canada has excluded immigrants with disabilities. The 1910 Immigration Act, for example, introduced “prohibited classes” of immigrants, prescribing an absolute ban of individuals with mental disabilities (“idiots, imbeciles, feeble-minded persons, epileptics, and insane persons”), while individuals who were “physically defective” were still allowed to immigrate if they could prove sufficient support.

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Today’s Immigration and Refugee Protection Act no longer uses such reprehensible language, but the law still says that foreign nationals are inadmissible to Canada if their health condition, or even that of a family member, might reasonably be expected to cause an “excessive demand” on health or social services.

Due to the high cost of HIV medications, people living with HIV are generally medically inadmissible unless they fall within one of the exceptions to the excessive demand rule. Needless to say, the excessive demand regime is rooted in discrimination and conceals outdated prejudices that people with disabilities are a burden on Canadian society.

Discriminating against migrants

In 2010, Canada celebrated its ratification of the UN Convention on the Rights of Persons with Disabilities, and the federal government expressed its commitment to “upholding and safeguarding the rights of persons with disabilities and enabling their full participation in society.” Yet, the Convention specifically calls on States Parties to “recognize the rights of persons with disabilities to liberty and movement, to freedom to choose their residence and to a nationality.”

The excessive demand regime clearly violates this Convention. The UN has also repeatedly called upon countries to eliminate HIV-related restrictions on residence, and described HIV-related discrimination in immigration as a violation of the right to equality before the law.

Not only is the excessive demand regime a discriminatory relic of immigration policy, the regime undermines many of the objectives of our immigration legislation

Numerous countries do not have any laws or policies that deny migration based on health status. Driven by increasing public pressure to reduce the number of migrants to the country on the grounds that they were overburdening the education, health and social welfare infrastructure, the United Kingdom’s All-Party Parliamentary Group on AIDS nevertheless concluded that “the UK Government cannot look to exclude individuals on the basis of poor health in the UK, while simultaneously working to provide access to health in developing countries.”

The same can be said about Canada, which has invested roughly $350 million between 2001 and 2011 on international projects with a focus on disability, and recently pledged over $800 million to the Global Fund to Fight AIDS, Tuberculosis and Malaria. Yet the excessive demand regime denies some of the very persons who we fund overseas from entering our country.

A system rife with flaws

Not only is the excessive demand regime a discriminatory relic of immigration policy, the regime undermines many of the objectives of our immigration legislation, including the pursuit of the greatest social, cultural and economic benefits of immigration, the enrichment of the social and cultural fabric of Canadian society, the development of a strong and prosperous economy, and the reuniting of families.

The system is also rife with operational flaws, such that the cost of administering the excessive demand regime likely outweighs any savings. Rather than save the government money, a system that brands people with disabilities as undesirable likely costs immigration authorities more to administer.

The breadth of problems with the excessive demand regime compelled the Standing Committee on Citizenship and Immigration to review the excessive demand regime recently. They too recognize the serious problems that this system causes.

As the Minister of Immigration, Refugees and Citizenship acknowledged during his appearance before the committee, “…the current excessive demand provision policy simple does not align with our country’s values on the inclusion of persons with disabilities in Canadian society.”

That is why, in its recently released recommendations, the committee noted that “the dignity and human rights of those applying to enter Canada play a central role in the selection of a policy path forward” and recommended a repeal of this harmful and unjust approach. This is a tremendous first step; now, parliamentarians must heed that recommendation. Justice and equity demand it.

Sandra Ka Hon Chu is the Director of Research and Advocacy with the Canadian HIV/AIDS Legal Network.

Maurice Tomlinson is a Senior Policy Analyst with the Canadian HIV/AIDS Legal Network.

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