Beats: Disability

Crossing the Border While Disabled

For immigrants and refugees with disabilities, discrimination is law

5 min read

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Image credit: Darren Garrett
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Since the 2016 U.S. presidential election, many of my nondisabled American friends often blithely talk about leaving the country and settling elsewhere. Often, I read Facebook posts about their intentions to move, usually to Canada. When I post a comment mentioning the difficulties that a person with a disability faces when immigrating, the few replies are basically “I never knew.”

Most of us do know about the current humanitarian crisis caused by the Trump administration’s “zero tolerance” immigration policy. But not many people know that the White House is trying to make it even more difficult for people with disabilities to obtain permanent residency in the U.S.

In April, 2018, the Department of Homeland Security proposed a rule change surrounding how permanent residency applications are considered. Heavily weighted negative factors would include: perceived lack of employability, the current or past receipt of public benefits, and whether or not the applicant has the financial means to pay for medical costs. Since 1999, explains Gabrielle Lessard, the senior policy attorney at the National Immigration Law Center, “cash assistance and long-term hospitalization care” have been the only two benefits considered “negative.” The proposed rule, the comment period for which closed on December 10, would expand the list of negative factors to include most government-funded health care, including Medicaid.

Immigration to many countries is already difficult for those with disabilities. In 2007, when I applied for permanent residency in Canada, I learned that medical requirements were waived only if I were married to a Canadian citizen. Fortunately, Canada had recently recognized gay marriage, so I was able to live as a permanent resident with the Canadian citizen who, for the past 12 years, has been my husband.

Others are not so fortunate. A friend of mine, a respected scholar, had to turn down a visiting professor appointment in Toronto because his disabled partner would not be allowed to accompany him. In 2016, York University professor Felipe Montoya was denied permanent residency because his son, Nico, has Down syndrome; by the time the decision was overturned through “ministerial intervention,” Montoya’s family had already relocated to his native Costa Rica.

Regarding health status, the Canadian Immigration and Refugee Act states that people with disabilities can be denied a visa because they “might reasonably be expected to cause excessive demand on health or social services.” Despite the question of its constitutionality, this clause of Canada’s immigration law has been used to deny residency for people with disabilities, no matter their other professional or financial assets. This clause also contradicts the United Nations Charter on the Rights of Persons with Disabilities (UNCRPD). The U.N. Department of Economic and Social Affairs says that Article 18 of the UNCRPD calls upon participating nations “to recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.”

In April, 2018, Canada did alter its rules. CTV reports that the changes “will amend the definition of social services by removing references to special education, social and vocational rehabilitation services and personal support services.” Canada is “also tripling the cost threshold at which an application for permanent residency can be denied on medical grounds.” However, there has been pushback by conservative politicians who say they are concerned about costs.

On the other side, James Hicks, the national director of the Council of Canadians with Disabilities, an organization that advocates for full repeal of the medical inadmissibility regulations, calls the changes “tweaks.”

Montoya himself says of the revised rules, “We recognize this timid move in the right direction, but will be relentless in calling for what should have been done today and not in some indefinite future–full elimination of this discriminatory policy.”

Australia is another country where cases similar to Montoya’s occur. In 2016, after 8 years of living there, Bhajan Kaur was denied permanent residency because of her intellectual disability. Though she cannot live independently, her family has the financial means for her to live at home, and she has been described as “physically well.” The Department of Immigration and Border Protection denied her permanent residency application because she would be “a significant health burden” to the Australian community. Assistant Minister for Immigration and Border Protection Alex Hawke declined her family’s request to intervene.

The choice for Bhajan’s family was stark. One option was for her to return alone to Singapore, where she was born, and live in an institution for the first time in her life. The other was for her brother to accompany her back, leaving his wife, son, and job behind in Australia. This story isn’t unique. The National Ethnic Disability Alliance reported dealing with 25 similar cases between 2014 and 2016.

In the U.S., a new concern has arisen: What is to happen to children with disabilities born in the country to undocumented immigrants? In May, 2017, The Atlantic reported the story of Abril, an 8-year-old with cerebral palsy who lives in Santa Cruz, California. Her parents, Rafael and Sonia, have lived undocumented in the United States for more than a decade. Abril, a U.S. citizen, depends on her parents to survive.

According to The Guardian, a spokesman for Immigration and Customs Enforcement (ICE) has said, “For parents who are ordered removed, it is their decision whether or not to relocate their children with them.” In Mexico, without the help of Medi-Cal and California Children’s Services in supplying Abril with necessary equipment and medication, her chances of survival would be minimal. Abril’s mother told The Atlantic, “If we go to Mexico and we have to bring her . . . it is certain she will not live much time.”

The situation for disabled immigrants can be similarly dire in European countries. In Spain and Italy, there are barriers to citizenship for those with disabilities. In France, it is possible to reject a citizenship request because of disability. In Germany, although there are no specific federal regulations to exclude residency for those with disabilities, disabled immigrants must find a job that comes with government health insurance, or else grapple with the private insurance market, which does not cover pre-existing conditions. It is also difficult, and costly, for those over 55 to obtain health insurance. Furthermore, Germany has mandatory citizenship tests and language tests, which are barriers for many who are disabled. (Some nations, including the U.K. and the Netherlands, have granted exemptions to their versions of these tests due to medically certified mental or physical impairments.)

Worldwide, there is a severe lack of accessible housing and services for disabled refugees. A recent study by Handicap International and HelpAge estimates that people with disabilities and those who have suffered trauma and injury represent up to 30 percent of refugees. U.N. Secretary-General António Guterres, who was formerly the U.N. High Commissioner for Refugees, has warned, “Too often invisible, too often forgotten, and too often overlooked, refugees with disabilities are among the most isolated, socially excluded and marginalized of all displaced populations.”

What does all of this say about how disability is viewed in richer countries? In Canada, a nondisabled skilled worker would have a good chance at residency. Yet if this skilled worker gets cancer, or is injured in a car accident, the supposed “burden” on society might be greater than it would be in the case of a disabled person with a stable health situation–yet the latter immigrant would be denied a visa, solely because of that disability. Case in point: an article on the Council of Canadians with Disabilities (CCD) website is titled “Immigration and Disability: Stephen Hawking Could Never Become a Canadian.”

According to the CCD, such laws are also based on an outdated understanding of disability, which “fails to recognize the contribution that people with disabilities can, and do, make.” These immigration regulations show a continued view of disability as a predominantly medical issue.

As the current international immigration debate continues to sow both fear and misunderstanding, and as the mistreatment, demonization, and dehumanization of immigrants continue to dominate the headlines, we need to keep in mind the full picture of immigration, in which people with disabilities should appear.

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How We Get To Next was a magazine that explored the future of science, technology, and culture from 2014 to 2019. This article is part of our “Disability” Beat, which asks the question: What will it take to include disability in our future debates about diversity? For more dispatches, click the logo.