In this article, an attempt has been made by the author to compare the provisions that are present under the immigration and refugee law of the United States and Canada, which allow the immigration to prevent persons from disabilities from immigrating to these countries on account of their disabilities. In this article, the history of these provisions has been traced in both of these countries, which reveals that over the time, these provisions have become less restrictive. The focus of in the policy of Canada concerning immigration legislation is on excluding the persons from immigrating to Canada if these persons can be anticipated to put too much demands on the health or social services, although there are certain exceptions present in this regard (Churgin, 2000). In a ruling given by the Supreme Court in Hilewitz v Canada (2005) where it was stated by the court that the medical officers are required to evaluate probablerequirements on social services, “not merely eligibility for them” but also the ability and the willingness of the applicant or the family members of the applicant to pay for these services. In its verdict, the court had directed that the officials are under an obligation to make individualized assessments instead of a mere classification of the impairment. However in this article, it has been suggested by the author that the focus of the court on too muchrequirement for social services instead of medical services may diminish the applicability of this verdict (Weber, 2004).
Disability arises as a result of the dynamic between the physical and mental condition of the people and the physical and behavioralobstacles that are present in the atmosphere. By using this notion related with disability to the immigration legislation of the US and Canada, the author had made an attempt to draw concentration to the obstacles to entry and the ultimate citizenship for the persons who may be suffering from a disability. Historically, the law in North America had excluded a number of clauses of immigrants. These included the persons with cerebral disabilities, physical defects, mental infirmity and other situations that are expected to result in dependency. Although the exclusions for individuals may result in drawing excessive public resources and the persons suffering from communicable diseases are still present in the US and Canada, during the recent years, the US had permitted the legalization for seriously disabled and unrecognized immigrants who are already present in the country. At the same time, both the US and Canada have abolished most of the exclusions from entering for the immigrants who are suffering from particular disabling conditions (Green and Lin, 2002). At the same time, liberalization has also taken place in context of the United States naturalization requirements.
However, the author points out that there have been a lot of challenges present. According to the US law, still there is a lot of discrimination concerning the likely public charge exclusion as it is for the consular officers abroad to decide unilaterally if they are going to issue immigrant visas or not. Another point that needs to be noted in this regard is that the conduct of related with mental disability which includes petty criminality may cause the expulsion from the US. The persons with mental disabilities have been provided with modest safeguards only during the removal proceedings. In the same way, in case of Canada, the families who have children suffering from disabilities can be barred from legal status as a result of these theoreticaltoo muchrequirements on public wealth, even if the disability of a person may offer grounds for averting expulsion in some cases. The reduction of some immigration exclusions in the US and Canada and of some obligations for citizenship in the United States reveal a considerable, although noticeablyunfinished removal of barriers related with disability in the law and society of North America (BloemraadandProvine, 2013).
In this way the author points out that even if the United States and Canada have eliminated a number of grounds of exclusion that particularly related with disability and conditions, still a large number of potential immigrants have been disabilities are disqualified as a result of the speculation that there will be using too much social or medical support. The earlier, categorical exclusions for the persons who have been classified as “mental defectives, lunatics, imbeciles and idiots” were an artifact of the turn of the century notion of eugenics which was a false science related with the improvement of the genetic stock of the people of the nation. In 1976, these outdated and the offensive terms were removed by Canada from its immigration legislation. However it still retained the provisions which allow the exclusion of persons who could be expected to put excessive demands on the social or health services (Hahn, 1993).
There are a number of disability rights advocates who talk regarding a social model of disability, conditions that are generally considered to be disabling are not necessarily so but for the conditions that have been imposed by the society. It is not necessary that the person using a wheelchair is disabled, but for the curbs, stairs, narrow doorways or other physical obstacles. The persons suffering from other conditions face obstacles that are based on stereotyping or popular attitudes. These can be considered as the limits imposed on the application of the social model of disability but it also sheds light on the chances of changing social conditions which allow the persons with disabilities to take complete part in the economy and culture had an equal level. For example, altering attitudes, installing ramps and generally providing accommodations are the part of modern reforms that result in eliminating social and physical barriers to equality (Butler, 2013).
By applying the social model thinking in context of the practice of immigration law requires for questioning if the excessive demand clause and its counterpart under the US law, the public charge exclusion, can be considered as anything but the creation of an artificial barrier to the quality that has been implemented in case of the persons suffering from disabilities.
The persons with disabilities as well as their families also pay taxes and they also equally contribute to the human and economic vitality of the society. It also needs to be noted that social support always works on averaging basis as it separates the risks and costs between all the members of a particular population. By excluding the family of person who has Down syndrome only adds to the challenges that are faced by any family having a child with a severe disability is going to face (Anderson, 2014).
However the author also points out that certain inroads have been made on the exclusion based on excessive demand. It has been ruled by the courts in Canada that each case needs to be evaluated individually. If it is found that private resources are going to be used for the family member suffering from a disability, the basis for exclusion is not applicable in such a case. At the same time, there have been certain cases where the courts have stayed the deportation of the immigrants on account of disability related hardships that will be suffered by them in case they are sent back. In this way, it can be said that Canada does not appear to be suffering from the widespread problems that are present in case of the United States regarding the persons having mental impairments being deported from the country as against the law. Due to their inability to understand the procedures related with immigration and to exercise the rights that have been provided to them to remain in the country.
However, there is very little doubt that the clause related with excessive demand on health and social services results in a harsh effect on the persons who are already facing discrimination on account of their disability.
Therefore, in the end, as per the author, the recent reforms taking place in the United States related with naturalization are significant accommodation for the immigrants having disabilities and who are looking for citizenship. These reforms need to be considered in Canada also. At least the lawmakers in Canadaare considering the recent changes due to which, attaining citizenship has become more difficult for the persons suffering from disabilities.
References
Harlan H, H., (1993). “Equality and the Environment: The Interpretation of ‘Reasonable Accommodations’ in the Americans with Disabilities Act”. 17:3 Journal of Rehabilitation Administration 101
Bloemraadand D. M. P, (2013). “Immigrants and Civil Rights in Cross-National Perspective”, 1:1 J Comparative Migration Studies 45 at 53
Mark C Weber, 2004, “Opening the Golden Door: Disability and the Law of Immigration”, 8:1 J Gender, Race & Just 153 at 156.
Churgin, M.J. (2000). “Immigration Internal Decision Making: A View from History”. 78:7 Tex LR 1633 at 1638.
Wilde A. M., (2014). “The Western, Rural Rustbelt: Learning from Local Fiscal Crisis in Oregon” 50:4 Willamette L Rev 465 at 479-80
Green N and Chih Lin A. (2002). Immigration, Washington, DC: Congressional Quarterly Press, at 22
Butler, D.P. (2013). “Poor People Lose: Gideon and the Critique of Rights”, 122:8 Yale LJ 2176 at 2183-85
Case Law
Hilewitz v Canada (Minister of Citizenship & Immigration), 2005 SCC 57 at paras 54-56
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