IMMIGRANT SELECTION, HEALTH REQUIREMENTS, AND DISABILITY DISCRIMINATION.

Author:MacKay, Douglas
 
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Liberal democracies often impose health requirements on prospective immigrants seeking permanent residency. First, many countries only admit prospective immigrants who do not have a health condition that poses a significant risk to public health or public safety. Second, some countries also only admit prospective immigrants who do not have a health condition that is likely to result in "excessive" demands or burdens on publicly funded health and social service programs. Canada's Immigration and Refugee Protection Act includes both types of health requirements:

38(1) A foreign national is inadmissible on health grounds if their health condition

(a) is likely to be a danger to public health;

(b) is likely to be a danger to public safety; or

(c) might reasonably be expected to cause excessive demand on health or social services. (1)

While health requirements of the former type--i.e., 38(1)(a) and 38(1)(b)--are prima facie reasonable, grounded in governments' duty to protect their citizens from harm, critics have rightly raised questions regarding the latter type of requirement, i.e., 38(1)(c). In practice, Canadian immigration officials enforcing 38(1)(c) have refused admission to prospective immigrants with disabilities, including people with Down syndrome, cerebral palsy, autism, paraplegia, and deafness. (2) Critics have therefore argued that 38(1)(c), and policies similar to it, constitute a form of wrongful discrimination against persons with disabilities. (3)

In this paper, I investigate this charge. States arguably have a duty not to discriminate against prospective immigrants on the basis of race, religion, national origin, ethnicity, sex, gender identity, and sexual orientation, and, since disability is often considered to be a morally analogous feature of people's identity, it would seem to follow that states also have a duty not to discriminate against prospective immigrants on this basis. If this is true, health requirements such as 38(1)(c)--call them social cost health requirements--would be unjust.

In section 1, I provide a brief overview of social cost health requirements, using Canada's policy as a representative example, and suggest that these policies constitute a form of direct discrimination against prospective immigrants with disabilities. In section 2, I provide a freedom-based account of the wrongness of discrimination. According to this account, discrimination is wrong when and because it involves disadvantaging people in the exercise of their freedom on the basis of morally arbitrary features of their identity. Discrimination is permissible, I suggest, when it is necessary to advance a valuable exercise of the discriminating agent's freedom.

In section 3, I apply this account to the case of social cost health requirements. Against critics of these requirements, I argue that it is sometimes permissible for states to discriminate against prospective immigrants with disabilities. States may do so, I suggest, when such discriminatory treatment is necessary to significantly advance the realization of morally important purposes, for example, the promotion of citizens' health. Alongside critics of social cost health requirements, however, I argue that the existing policies of many states are a form of wrongful discrimination insofar as they are likely too broad to satisfy the above-mentioned standard. Focusing on Canada's policy in particular, I outline revisions that must be implemented if it is to be permissible.

In addressing the permissibility of social cost health requirements, I assume that legitimate states possess a limited moral right to exclude prospective immigrants. (4) After all, the question of the permissibility of these requirements only arises if states such as Canada possess such a right. This right is limited since it does not permit legitimate states to refuse entry to all prospective immigrants, for example, refugees who arrive at their borders. A consequence of this assumption is that, for at least some prospective immigrants, admission is a discretionary good--a good that legitimate states need not offer, and so to which no prospective immigrant has a claim right. (5) As I explain below, this does not mean that states may distribute admission in any way they please.

  1. ARE SOCIAL COST HEALTH REQUIREMENTS DISCRIMINATORY?

    Social cost health requirements (SCHRs) refuse permanent residency to prospective immigrants with health conditions that are likely to result in an "excessive" demand or burden on the receiving state's health and social service programs. Such requirements are employed by Australia, Canada, and New Zealand. (6) Canada's SCHR offers a representative example: 38(1)(c) of Canada's Immigration and Refugee Protection Act directs immigration officials to refuse admission to prospective immigrants whose admission is likely to result in an "excessive demand" on health or social services. Until very recently, an excessive demand was defined as:

    (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or

    (b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. (7)

    In practice, under (a), Canadian immigration officials refused permanent residency to prospective immigrants with health conditions that were expected to result in fiscal costs that were greater than the per capita average--currently $6,655 per year. (8) Such conditions included Down syndrome, cerebral palsy, autism, paraplegia, and deafness. (9) In response to a 2017 review of the policy by Parliament's Standing Committee on Citizenship and Immigration, the government department Immigration, Refugees and Citizenship Canada made two changes to the definition, taking effect on June 1, 2018. (10) First, the term "social services" is now understood to mean publicly funded social services that are closely related to health services rather than educational or rehabilitation services. (11) Second, the cost threshold has been increased to three times the average Canadian per capita cost of health and social services. (12)

    Importantly, not all prospective immigrants are subject to 38(1)(c). According to 38(2) of Canada's Immigration and Refugee Protection Act:

    38(2) Paragraph (1)(c) does not apply in the case of a foreign national who

    (a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;

    (b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;

    (c) is a protected person; or

    (d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c). (13)

    Thus, 38(1)(c) applies to economic-class migrants and some family-class migrants, but not to humanitarian-class migrants, and not to family-class migrants who are spouses, common-law partners, or children of sponsors.

    The number of prospective immigrants refused admission under 38(1)(c) has been declining in recent years. In 2016, only 337 applicants were deemed inadmissible, compared to 473 in 2015 and 619 in 2014. (14) To put these numbers in context, in 2015 Canada granted permanent residency to 271,847 people, including 170,398 in the economic category, 65,490 in the sponsored family category, and 32,115 in the resettled refugee and protected persons in Canada category. (15) With the recent changes to the definition of "excessive demand," the number of prospective immigrants who will be refused admission to Canada under 38(1)(c) is expected to drop even further.

    Are SCHRs such as Canada's discriminatory as their critics claim? Scholars offer conflicting accounts of the nature and types of discrimination. (16) However, there is widespread agreement that discrimination involves treating members of a particular socially salient group--i.e., a group important to the structure of social interaction across a wide range of social contexts--worse than nonmembers because of their membership in that group. (17) Clearly SCHRs satisfy this definition.

    First, these policies disadvantage certain prospective immigrants on the basis of their membership in a group, i.e., having a socially costly health condition. Second, most--if not all--members of this group are members of a group that is socially salient: persons with disabilities. Scholars disagree sharply on how to understand and define disability. (18) However, there is consensus among a number of prominent official definitions of disability that disabilities have two common features:

  2. A physical or mental characteristic that is, or is perceived as, an impairment.

  3. Some personal or social limitation that is associated with that impairment. (19)

    Many if not most socially costly health conditions are likely to count as disabilities on this definition. First, although the concept of health is contentious, on any reasonable conception most health conditions will be grounded in physical or mental characteristics that are impairments. As Jerome Bickenbach puts it, "whatever else it is, health is a state of a person's body, describable by the language of the biological sciences, broadly construed, and assessed against biostatistical norms of bodily functioning that, though fluid and changeable, are relatively stable over time and place." (20) Furthermore...

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