Disability rights and immigration
By Ravi Malhotra
In recent years, activist organizations such as “No One is Illegal” and “Justicia for Migrant Workers” have played an important role in raising publicity and solidarity about the serious and systemic problems that many undocumented immigrants and refugees experience in the Canadian immigration system as well as their exploitation in informal labour markets. In light of the nationalist politics that still dominate much of the English Canadian Left and its marked tendency to regard the Canadian state as a bastion of progress and enlightenment untouched by the blemishes of racism or vicious class exploitation, this solidarity work has been extraordinarily important in exposing an uglier and strategically crucial side of how capitalism really operates. However, one issue that has been almost entirely ignored by left organizations and activists, time and again, is the virtual exclusion of people with disabilities as potential immigrants under the Canadian Immigration and Refugee Protection Act. Also ignored are the efforts by disability rights activists to challenge these exclusions.
The failure of activists to take up the rights of disabled immigrants reveals two major social problems with profound implications for the Left: (i) the continued marginalization of issues affecting people with disabilities and their theoretical analysis on the activist Left; and (ii) a missed opportunity for better appreciating how, despite liberal fantasies about multiculturalism, the immigration system fundamentally is about cream skimming the most desirable immigrants that will benefit Canadian capital and corporations through their labour, while rejecting those who are deemed to have no marketable value.
The Social Model of Disablement
Before one can fully appreciate the issue, it is important to begin with a solid appreciation of disability discrimination, an awareness often lacking across all segments of the Left. Disability is best understood as a political issue that implicates the structural barriers that handicap people with disabilities, whether they be mobility, sensory, intellectual or mental health disabilities. While there are different theories of disablement that vary slightly in their details, the overwhelming focus is on the barriers rather than the physiological impairment in the disabled person’s body. These include a lack of wheelchair access in every conceivable type of public space ranging from universities to bookstores to restaurants and nightclubs. One glimpse at a campus such as the University of Toronto or Queen’s will make this point very evident to even the most casual observer.
Other barriers include a massive failure to provide materials required for work, school or recreation in formats accessible to blind and visually impaired people in a timely manner. A most significant social barrier is the widespread and pernicious attitudes that regard people with disabilities as incompetent, pathetic, asexual and fundamentally “inauthentic workers” to use a phrase coined by legal scholar Vicki Schultz. People with disabilities remain far more likely to be impoverished, unemployed and have lower levels of education than the average Canadian, yet the issue barely registers on the radar of most of the political Left.
Challenging all of these barriers is the project of the young but growing and increasingly vibrant disability rights movement. These activists embrace a philosophy known as the social model of disablement, which can be regarded as complimentary to feminist theories of patriarchy or queer theories of heterosexism. The social model of disablement contrasts with the medical model that focuses on the disabled person’s physiological impairment as the basis for public policy.
Despite the explosion of literature on new social movements in the last three decades, a genuine appreciation of disability oppression is surprisingly scarce on the Canadian Left where disabilities are most commonly regarded as personal medical problems rather than political issues. At the same time, awareness in society has increased because of both grassroots mobilization and consciousness raising by disability rights advocates and because of publicity and real, if very limited and contradictory, legal gains that people with disabilities have won by the inclusion of disability discrimination in the various provincial and federal human rights codes and in the equality provision of the Canadian Charter of Rights and Freedoms. In the case of the Charter, a document that has achieved almost legendary status on the nationalist Canadian Left, disability discrimination was only prohibited after mobilization by disability rights activists to have the original exclusionary version of the document amended.
Justifying the Exclusion of Migrants with Disabilities
With this background in mind, it becomes much easier to appreciate the poor treatment of people with disabilities under provisions in both the original Immigration Act and the Immigration and Refugee Protection Act (IRPA) that was enacted to replace it in 2002. Canada’s system of immigration has always been about bringing the most economically desirable workers into the country regardless of the implications for the immigrants’ quality of life.
While it is true that family reunification has often been touted as a major policy goal, at least in the sense of the heterosexual nuclear family, this has only been selectively applied. For instance, Chinese men who were granted immigration status to build the Canadian railway system were notoriously prevented from bringing their families with them and such discriminatory policies regarding the landing of Asian immigrants continued into the 1950s. While there is no doubt that racism played a significant role in this policy, it also signifies the fact that families of certain classes of immigrant workers were regarded as economically inefficient and therefore irrelevant for the needs of Canadian capital accumulation.
Similarly, people with disabilities have historically been excluded as inadmissible because the explicit point of immigration policy has always been to have the most efficient and productive pool of immigrants possible. With the rise of the eugenics movement, very prominent in the late nineteenth and early twentieth centuries until it was discredited in the aftermath of the Nazi Holocaust, excluding people with disabilities in Canada and other Western countries became almost a scientific norm that was generally accepted as sound public policy.
Eugenics was a dysfunctional attempt to improve society through a misuse of science by weeding out, through segregation or sterilization, those elements that were regarded as inferior. While people with mental and physical disabilities were always a prime target of proponents of eugenics, this philosophy was also deeply imbued with racist, sexist and classist ideas from start to finish. Indeed, eugenics thinking was so widely accepted that such unlikely and otherwise progressive figures as the suffragette Nellie McClung and J.S. Woodsworth, the first leader of the social democratic Cooperative Commonwealth Federation (CCF), endorsed the concept. Relying on the principles of eugenics, nearly three thousand Albertans and a smaller number of British Columbians who were deemed to have “mental defects”, in particular women, teenagers and indigenous peoples, were sterilized. The Alberta Eugenics Board was not abolished until 1972 and compensation payments to sterilized adults were not made in most cases until the late 1990s.
Canadian legislation prohibiting the entry of immigrants with disabilities may in fact be traced back to the 1850s, prior to Confederation. There was always a particular fear of admitting people with mental health or intellectual disabilities. What is remarkable, and perhaps indicates how immigration policy was affected by the eugenics paradigm, is the fact that prior to amendments to the Immigration Act in 1927 people with disabilities who were able to demonstrate that their families would permanently provide financial support were admitted. Only after 1927 were people with disabilities entirely prohibited. Canada was not alone in creating such policies, and particularly poignant are anecdotes of US immigration officials who would write letters in chalk on the backs of prospective immigrants who had disembarked by ship to indicate various disabilities that could potentially be grounds for deportation or exclusion. In fact, Canadian legislation in this era fined ship operators for transporting passengers with disabilities.
Excessive Burdens
Although eugenics has been justifiably marginalized in the post-war period, the basis for excluding people with disabilities has simply shifted from overt biological inferiority to concerns that people with disabilities cannot make valuable contributions to the economy and/or constitute an excessive burden on health or social services. This type of language was codified in amendments to the Immigration Act in 1976.
Unfortunately, despite the growth of a disability rights movement in the last thirty years and especially since the mid-1980s, the immigration system has proven to be a staunch bastion of discrimination against people with disabilities and plays, at a time of neo-liberal cutbacks, on public perceptions of a health care system that faces ruin at the hands of costly foreigners with complex medical issues. This is ironic because hostility to immigrants with disabilities clearly long predates the establishment of Medicare. Until very recently, prohibitions on immigration applied not simply to working-age immigrants but even to dependent spouses and children as well because of fears that they would impose an excessive demand on health or social services.
The discredited “medical model” of disability is at the core of this system. Physicians have the power to make decisions about the admissibility of immigrants, even though physicians simply are not in any position to accurately assess how a specific physiological impairment will interact with the social environment to create a particular economic outcome.
Disability Rights Activists Fight Back
There have been attempts to challenge this blatant discrimination in Canadian courts. In Chesters v. Canada, a plaintiff challenged the constitutionality of a provision of the old Immigration Act that deemed individuals to be inadmissible for immigration if there were reasonable grounds to believe the prospective immigrant would place an excessive demand on health or social services.
The case concerned a German citizen who was diagnosed with multiple sclerosis and used a wheelchair. She had married a Canadian citizen and applied for permanent residence as part of the family class. Despite the fact that she was a very highly educated woman, immigration authorities had concluded that she was not eligible to immigrate merely because it was believed her disability would cause an excessive demand on health and social services. She was permitted to enter Canada with a “Minister’s Permit”, hardly an appropriate resolution as this permit only bestows a precarious status in Canada for a temporary period during which she was not entitled to work or receive social benefits.
In 2002, the Federal Court (Trial Division) dismissed her case. Basing its reasoning on the long history of backward legal precedents that state that no person has a “right” to entry to Canada, the Federal Court bizarrely ruled that her legal challenge was not about equality rights for people with disabilities but merely about challenging the provision constraining immigrants who would place excessive demands on Canadian health or social services. This circular mode of specious reasoning completely ignores the fact that medical inadmissibility criteria only screen potential immigrants on the basis of health conditions (and not other potentially costly lifestyle conditions) and the fact that people with disabilities can make important contributions to the economy.
One small ray of hope in all this is the fact that the much criticized Immigration and Refugee Protection Act that has replaced the old Immigration Act no longer prohibits immigrants with disabilities who are: (a) being sponsored by a Canadian spouse; (b) being sponsored by a Canadian parent in the case of dependent children; or© individuals who have been granted refugee status in Canada. These three categories of immigrants are now permitted to become landed immigrants in Canada regardless of any impact on the health care system or social services. For all its many flaws that have attracted justified criticism from the Left, this particular feature of the new Act is a positive reform.
Also positive news is the very recent decision by the Supreme Court of Canada in Hilewitz v. Canada. In that case, the Supreme Court has instructed immigration authorities to look at the family circumstances of disabled children of immigrants, including financial resources and community supports. In other words, immigrants who would normally be excluded because of their disabled children, can now come to Canada if they can show they have financial and other resources to support their children without posing an “excessive burden on social services.” This decision is helpful in that it undermines what would otherwise be the wholesale exclusion of people with disabilities. Its impact, however, will likely only be enjoyed by wealthier immigrants, such as those who have already been accepted in the “Investor” and “Self-Employed” categories, and can therefore provide reasonable evidence of resources and supports to persuade immigration authorities that the family is able to absorb any potential social costs of their children’s disabilities.
Valuing the Lives of People with Disabilities
There nevertheless remains a major problem. Despite these positive changes, the vast majority of potential immigrants with disabilities, such as independent applicants or sponsored immigrants who are neither spouses nor children, are still subjected to demeaning testing to determine whether their disabilities cause an excessive demand on health or social services. Such an approach appears completely devoid of any true understanding of the social model of disablement and regards disability in an entirely negative light, detached from the social environment that handicaps and discriminates against people with disabilities. The reality is that many immigrants with disabilities have talents and gifts that can make a contribution to Canadian society.
There is also a deeper dilemma for advocates of social justice as well as disability rights activists. Why should advocates of social justice accept the concept that immigrants with disabilities, regardless of their classification in the hideously complex bureaucracy that is contemporary Canadian immigration law, ought to be valued by their labour power as determined by the marketplace? This is a crass form of commodification that has to be challenged by both immigrants and non-immigrants.
In a powerful piece that appeared recently in the American socialist journal Monthly Review, American disability rights activist and painter Sunny Taylor has eloquently made the case for not valuing the lives of people with disabilities by their ability to work in the capitalist marketplace. Instead, any genuine movement for social justice would encompass a broader notion of human flourishing that did not tie human worth to the capacity to perform wage labour. Disability rights activism on immigration issues only underscores this point as well as showing the main focus of the immigration system is toward facilitating profitability.
Disability rights activism on immigration issues also opens up the possibility for a more multiracial disability rights activism that has until recently been very white. The last conference of the Society for Disability Studies, which is one of the main centres of disability scholarship and activism in the United States and beyond, experienced a critique and mobilization from and by disabled people of colour who have felt marginalized by a disability rights movement that has often ignored their concerns. Immigration activism on disability issues provides the basis for greater solidarity across disparate constituencies in the hope of building another world of social justice.
