Focus on: Immigration Law
Last year, Felipe Montoya, a York University professor whose child has Down syndrome, was denied permanent residency due to his son’s condition, while a group of Toronto live-in caregivers launched a publicity campaign following similar rejections for several of its members.
All the applications fell foul of s. 38(1)(c) of the Immigration and Refugee Protection Act, which makes foreign nationals inadmissible to Canada if their health condition “might reasonably be expected to cause excessive demand on health or social services.”
Mary Keyork, who runs Keyork Immigration Law in Toronto, says she would like to see the provision scrapped altogether.
“Personally, I would say this shouldn’t exist. Having illnesses and medical conditions are part of life, and I don’t think they should prevent a person from immigrating somewhere,” Keyork says.
“As a place of values, I think we should be more inclusive as a society and welcome people with these conditions. And we should be inspiring other countries to do the same.”
The Toronto-based Caregivers’ Action Centre echoed those sentiments in a statement last year, claiming s. 38(1)(c) needs to go because it “allows for discriminating against people with disabilities.” The group had identified 25 live-in caregivers who entered the country under the Temporary Foreign Worker Program but saw their subsequent permanent residence applications rejected based on their own health problems or those of a dependant.
But Andy Semotiuk, an immigration lawyer with Pace Law Firm in Toronto, says a complete repeal of the section would be unrealistic.
“If people around the world learned that Canada is prepared to accept ill or sick persons without question, then we’re going to have a huge lineup in every country of people waiting to get in for health reasons or to get access to medical care,” he says. “The rule needs to be there, but it needs to be exercised fairly and flexibly enough so that worthy cases are getting through.”
Even Hadayt Nazami, an immigration lawyer and friend of Montoya, says some kind of restriction on admissibility is justified when it comes to medical costs.
“Because of the public nature of our medical system, it’s going to be hard to argue that it’s fair to completely get rid of the rule,” says Nazami, a senior lawyer at Toronto immigration and refugee law boutique Jackman Nazami and Associates.
Montoya, an environmental science professor, applied for permanent residence for himself, his wife and his two children after joining York University on a work permit.
But in March 2016, a letter from Immigration, Refugees and Citizenship Canada informed him they had all been denied.
According to the letter, an officer determined that then-13-year-old Nico Montoya was “a person whose health condition might reasonably be expected to cause excessive demand on social services in Canada,” defining the threshold as “a demand for which the anticipated costs exceed the average Canadian per capita health and social services costs, which is currently set at $6,387 per year.”
In contrast, the IRCC letter predicted Nico’s health and social care costs would top $20,000 per year thanks to the cost of educating a child with special needs. However, Nazami says that figure was arrived at “without any logical basis.”
“Medically, there is nothing wrong with the child. The only thing that set him apart from the rest of the family was the visible disability that showed up,” Nazami says.
The Montoyas ended up leaving Canada for Costa Rica, the family’s country of origin, while fighting back against their rejection.
Felipe Montoya retained his connection with York University, working on a project it sponsors in the Costa Rican rainforest.
The family eventually got some good news later in 2016, when their permanent residence application was granted after all on humanitarian and compassionate grounds, following an intervention at the ministerial level.
But Nazami, who with Felipe Montoya has met with senior IRCC officials to discuss his case, says the fight goes on against the operation of s. 38(1)(c), adding that he would ultimately like to see amendments made to the IRPA.
According to a statement from IRCC spokeswoman Nathalie Schofield, the federal government is currently in the middle of a “fundamental review” of the excessive demand provision with its provincial and territorial counterparts.
However, she notes that the law survived a Constitutional challenge back in 2002 and points out that it was used to reject just 330 permanent resident applications in the last four years, or 0.03 per cent of the 1.1 million applications received in the same period.
“No specific health condition will result in an automatic rejection of an applicant,” Schofield says.
A rejected applicant can file a mitigation plan that shows their willingness to contribute to the social services costs, but they can’t be considered for health services as federal law requires them to be covered by provincial and territorial insurance plans, Schofield explains.