Hey there, time traveller!
This article was published 11/5/2016 (1991 days ago), so information in it may no longer be current.
In March, national news media reported on the case of Felipe Montoya, a university professor in Ontario who is applying for permanent residency in Canada and whose 13-year-old son Nicolas has Down syndrome. Nicolas’s disability may render Montoya ineligible to stay because of a potential "excessive demand" to the health-care system. Despite his position as a tenured professor of environmental studies at York University, Montoya and his family may be forced to return to Costa Rica.
Canada, the United States, and many other countries exclude otherwise admissible immigrants on the grounds they or their families will place too great a burden on public resources. Recently, disability rights advocates have challenged these exclusions.
Although both Canada and the U.S. have eliminated many grounds of exclusion that relate specifically to disabling conditions, large numbers of potential immigrants with disabilities find themselves disqualified because of speculation they will absorb too much medical or social support. The old, categorical exclusions for persons classed as "mental defectives, idiots, imbeciles and lunatics" were an artifact of turn-of-the-century ideas of eugenics, a false science dedicated to improving the genetic stock of the national population. In 1976, Canada cut these offensive and outdated terms from the immigration statutes. But it retained the provision allowing the exclusion of those who could be expected to place excessive demands on health or social services.
Many disability rights advocates talk about a social model of disability, the idea conditions normally thought of as disabling are not necessarily so but for conditions that society imposes. A person who uses a wheelchair is not necessarily disabled but for stairs, curbs, narrow doorways and other physical obstacles. People with other conditions face obstacles based on popular attitudes or stereotyping. There are limits to the application of this social model of disability, but it casts a light on the prospects of changing social conditions so as to permit people who have disabilities to participate fully in the economy and culture on a plane of equality. Installing ramps, altering attitudes and generally providing accommodations are modern reforms that eliminate physical and social barriers to equality.
Applying social-model thinking to immigration law and practices calls for questioning whether the excessive-demand clause — and its cousin in American law, the public-charge exclusion — is anything but an artificial barrier to equality for people who have disabilities.
People with disabilities and their families already pay taxes and contribute to the economic and human vitality of society. Social support always works on an averaging basis, spreading risks and costs among all the members of a given population. Excluding the family of someone who has Down syndrome adds to the challenges any family that has a child with a severe disability is likely to face.
There have been some inroads on the excessive-demand exclusion. Canadian courts have ruled each case must be evaluated individually, and if private resources will be used for the family member with a disability, the basis for exclusion does not apply. There are also instances in which the courts have stayed the deportation of immigrants on the basis of disability-related hardships they will experience if sent back. If news reports are any guide, Canada does not appear to have the widespread problems the United States has of persons who have mental impairments being deported contrary to the law because of their inability to understand immigration procedures and exercise rights they have to remain in the country.
But there is little doubt the excessive demand clause works a harsh effect on those who already face discrimination on the basis of disability. The new government in Ottawa has an agenda for immigration liberalization. Easing the impact of current laws on people with disabilities could be part of that reform effort.
Mark C. Weber is a law professor at DePaul University in Chicago.