In November 2013, Qyzra Walji, a 21-year-old London, Ontario woman with a disability, died in what police at the time treated as a murder-suicide. Qyzra, her father and her mother were each found dead with gunshot wounds. They were to be deported the following day to Tanzania. Despite living in Canada for 15 years, the family had been denied immigration status because Qyzra, a person with a disability, was thought to pose an “excessive demand” on Canadian health and social services. For 15 years the family had put in applications and requested interventions from politicians and bureaucrats, but had been denied.
The death of the Walji family exposed the immense pressures exerted by an unjust immigration system that discriminates against applicants based on disability status. After the events of 2013, migrant justice groups like No One Is Illegal-Toronto conducted protests and began to organize. The coalition Migrant Worker Alliance for Change (MWAC) took on the issue the same year and worked in league with disability organizations to make disability discrimination in the Immigration and Refugee Protection Act (IRPA) a political priority.
Section 38 of the IRPA lists the health grounds on which a person or an entire family can be denied permanent residency, including their being an alleged threat to public health or public safety, or the likelihood they will “cause excessive demand on health or social services.” The threshold for excessive demand is determined in part by data from the Canadian Institute for Health Information (CIHI), which estimated that total health spending would reach $6,604 per Canadian in 2017. If immigration officials determine an individual is likely to incur costs greater than that amount they can be denied permanent residency.
In 2008, the same institute determined that the average cost of a single hospital stay in Canada was $7,000. In other words, if an applicant can conceivably be expected to require one hospital stay in a year they have already surpassed the excessive-demand threshold. Other services that are considered in an assessment of excessive demand include special education, vocational rehab services, or any other service or device that helps a person function physically, emotionally, socially, psychologically or vocationally that is at least partially funded by the government.
Disabled people in Canada can tell you it gets easier to be disabled in this country when you have the means to cover your own health care needs. The same is true for people who immigrate to Canada. The reality of the excessive-demand clause is that it not only reinforces the class divide among disabled and non-disabled immigrants to Canada, it also undermines the status of disabled people who were born in this country; it puts a value on their lives equivalent to the “burden” they create for the health and social services systems.
This regime in the IRPA also increases the vulnerability and exploitation of low-waged migrant workers who are denied status upon arrival. Workers who become sick or injured because of substandard work conditions in Canada can be denied permanent status based on their injuries. Migrant workers who have come to Canada through federal schemes such as Caregivers or the Live-in Caregiver Program, Seasonal Agricultural Worker Program (SAWP) or Temporary Foreign Worker Program (TFWP) cannot change workplaces without losing their work permits, which means they cannot easily refuse dangerous or unsafe work, forcing them to risk illness or serious injury. The excessive-demand provision treats these migrants as disposable, as mere objects to be transferred across borders.
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Disability organizations have been on the frontlines of social justice, demanding respect for their differences and an end to their systemic marginalization, including through discriminatory laws. The Council of Canadians with Disabilities (CCD), the largest national disabled person’s organization, has been involved in immigration reform since the early 1980s, when it raised the issue of disabled refugees during the federal election campaign and asked for amendments to the Immigration Act. The organization continues to work with disabled migrants facing medical inadmissibility decisions. Despite the high stakes in these struggles, however, very little public attention was paid to the issue until recently.
In 2015, amidst growing coverage of discrimination against migrants with disabilities and their families, a roundtable and public discussion on Canada’s immigration regime was held at the United Steelworkers Hall in downtown Toronto. It was organized by disability advocates and the family of Felipe Montoya, a York University professor whose 13-year-old son Nico, a person with an intellectual disability, was denied permanent residency based on the excessive-demand provision.
With a strong turnout from the community, the town hall discussion brought together migrants with lived experience of excessive-demand rules, advocates from disability and migrant justice groups, and legal and academic experts. Once Nico Montoya’s story broke through, many disability and migrant justice activists, as well as HIV/AIDS advocates, came together or worked independently to educate members of Parliament and civil servants about the impact of excessive-demand determinations. Migrant caregivers bravely spoke about how being separated from their families affected them.
As a result, the federal government formally began to study Section 38 in 2016. A recent open letter initiated by disability justice and migrant justice organizations presents a forceful case for reforming the IRPA, echoing what organizations like the CCD have been arguing for decades: the excessive-demand clause “constructs disabled people only in negative terms—solely as a drain on resources. It erases the valuable contributions of disabled people to their communities.”
This is an increasingly important conversation to have, especially as the federal government releases what it calls a gender equity budget, promises new investments in immigration and has spent significant funds consulting on a national Disability Act. Excessive demand places disability rights in Canada, and the state itself, in contradiction. The hypocrisy of all of these promises in light of the IRPA cannot be denied.
Meanwhile, recent immigration scandals, like the highly publicized case of the Montoya family, have shown us that the success of permanent residency applications for disabled people remains the exception. Nico and his family were finally granted status, but only on account of ministerial involvement—the charitable intercession of a political representative on the Montoyas’ behalf to reverse the inadmissibility finding on humanitarian and compassionate grounds. Other migrants are left to wonder why such pardons are granted in some cases and not their own.
Such exceptionalism in the application process creates the impression that the only possible point of entry to Canada for disabled people is through their connection to a non-disabled relative. In some cases, the government has seemed more willing to grant status to families with children with disabilities as long as the parents are non-disabled, perhaps based on the belief that these families contribute more to society, are more valuable. This means that it is far more likely for higher-income earners to be accepted than lower-wage migrant caregivers.
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Among those affected by the excessive-demand provision are caregivers who come to Canada through a federal work program. Members of this group are predominantly racialized women from the Global South, many of whom are mothers of children with disabilities.
Josarie Danieles, a member of the Caregivers Action Centre (CAC) who came to Canada in 2010, paid over $6,000 to a recruitment agency and ended up in an abusive and exploitative employment program. But she persevered, continuing to work so that she could eventually have her family join her.
But like many other women, Danieles was denied the option of reunification after immigration officials decided her older daughter, Precious Ann Margaret (pictured), had “intellectual retardation,” an antiquated and offensive term identifying Precious as a person with an intellectual disability. The verdict was devastating for Danieles: the degradation of her daughter’s identity as a disabled person meant her family would be prevented from becoming permanent residents.
“We’ve made all these sacrifices with the assurance that there’s a pathway to permanent residency,” Danieles told the Toronto Star. “I spend so many years away from my family. Every night I stay up with my pinched heart.”
These cases, and there are countless others, expose how the excessive-demand clause in the IRPA is rooted in gender and racial inequity, forcing some families to choose between leaving their disabled family member behind or leaving the country. The burden of that choice falls predominantly on women, as they are more likely to be carers for disabled children.
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The Montoyas, Danieleses and others facing medical inadmissibility went public with their stories not just for themselves and their children, but to seek justice for all migrants and people with disabilities. Their individual and collective action has pushed the issue onto the federal agenda, culminating in a parliamentary review of the IRPA that in December recommended Section 38(1)(c) be repealed. This progress was not a result of the government seeing the light, but rather decades of organizing among marginalized communities that galvanized in the years since Qyzra Walji’s terrible death in 2013.
On March 12, the Caregivers Action Centre, with the Council of Canadians with Disabilities, HIV/AIDS Legal Network and Migrant Workers Alliance for Change, organized a day of action and rally to end medical inadmissibility. Members of these organizations called for the immediate and full repeal of Section 38(1)(c) as recommended by a parliamentary committee late last year.
“The Canadian law in dealing with immigrants with disabilities is outdated and should change,” said Jane de Jesus with the caregivers. “People with disabilities are not a burden on our community. Caregivers and all migrant workers need permanent residency upon arrival with no more discrimination based on ability.”
John Rae, first vice-chair of the CCD, also spoke at the rally, telling the crowd the IRPA “is demeaning to Canadians with disabilities, prevents the free movement of individuals guaranteed in the UN Convention on the Rights of Persons with Disabilities, and too often requires families to choose between coming to Canada and leaving a loved one behind.”
On April 16, Immigration Minister Ahmed Hussen announced changes to his department’s practices in response to the parliamentary standing committee’s findings and demands of civil society groups. Disappointingly, rather than dismantling the medical inadmissibility regime as advised, Minister Hussen has chosen to fine tune it by raising the cost threshold and promising to tweak how social services are defined. While we anticipate that the removal of references to special education, personal support services, and social and vocational rehabilitation services would spare some from dismissal, the IRPA continues to uphold the idea that disabled people are a burden on the country’s health and social services, and allows for their rejection as creating “excessive demands.” The changes are also silent on migrants already living in Canada, leaving many without a path to family reunification as a result of the act’s treatment of disability. This missed opportunity to repeal S38(1)(c) amounts to an abandonment of justice by the federal government and deferred equity for migrants with disabilities.
The federal government says it wants to improve opportunities for disabled Canadians, increase employment and remove the stigma associated with impairment and disability supports. But as long as the excessive-demand clause remains in place, the value of disabled people will continue to be calculated based on their use of health and social services. In doing so, the government denies the intersections between economic security and health, for migrants and residents alike, as though an individual’s ability to manage their health needs or those of their family does not factor into their search for a better life.
On the other hand, the day of action this March has shown us again how committed migrant and disability communities are to continuing the fight for justice and equality for disabled people. The full repeal of 38(1)(c)—a regressive and ableist part of Canada’s immigration system—can be postponed, but clearly not for much longer.
Natalie Spagnuolo is a PhD candidate in critical disability studies at York University and serves on the social policy committee of the Council of Canadians with Disabilities. Melissa Graham is Vice-President of Citizens with Disabilities Ontario and founder and co-organizer of the Toronto Disability Pride March. Syed Hussan is Co-ordinator of the Migrant Workers Alliance for Change.