South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of Foreign Affairs commented upon the coming into force of the Convention in 2008, that South Africa “has committed itself to removing all barriers faced by persons with disabilities,” this bill is easily assailable for not living up to this statement.

On its face, it is not evident that the new bill will meet its own objectives. Its stated aims are to more sharply define what a disability is, and speed up the appeals process. A parliamentary watch-dog group also noted that ministers were concerned with reducing the amount of persons who could receive government social assistance grants and wanted to combat fraud. The new bill defines a disabled applicant as a person with “a moderate to severe limitation to his or her ability to function as a result of a physical, sensory, communication, intellectual or mental disability rendering him or her unable to — (a) obtain the means needed to enable him or her to provide for his or her own maintenance; or (b) be gainfully employed.” Besides the fact that this bill uses the word disability to define disability, the definition still conveys a medical model approach as it only looks as to what the person lacks (means of self-maintenance or ability to be employed), and not how the person can be connected to society. The government has established that the largest problems in South African society for disabled persons are the threats posed by social exclusion, yet the bill does not address this fact. Also, the bill is adding another layer of appeal, and as it does not sharply define disability it does not seemed poised to dramatically lessen the amount of appeals. So how can South Africa take pragmatic steps towards achieving the goals laid out in this bill?

Professor Meryl du Plessis of the University of Cape Town, Faculty of Law, says that the government could start by beginning to look at disability as a “status” rather than viewing the definition through a needs-based lens.[1] While most South Africans are used to the acronym BEE (black economic empowerment), no similar widespread dedicated program or philosophy seems in place to empower disabled South Africans. As the UN Convention calls for “measures which are necessary to accelerate or achieve de facto equality of persons with disabilities,” the government could start from there.[2] For instance, it has been noted that the government has a very poor record of hiring persons with disabilities in the public sector. It could also move towards implementing the 2001 White Paper on Special Needs Education, which until now seems to be collecting dust. The government can curb the amount of disability social assistance grant-seekers in the future if it begins to educate and integrate them now. It is telling that the training of persons with disabilities called for in the Skills Development Act of 1998 fell significantly short of its target.

It is also telling that the whole of the debate around this bill focuses on diminishing the amount of persons on social grants (i.e. saving money), and not on progressing towards a social model of disability rights. It is indeed very hard in a country like South Africa to roll out the types of services such a model requires, as the country is overrun with refugees, faces poverty and unemployment, and its energy grid is plagued by a host of problems. However, the legislative framework is in place here to tackle the disability problem. Strong court challenges could prompt the government to get more serious about meeting its own targets and objectives. What is needed here is strong leadership. After all, South Africa is a country with functioning social institutions, nationwide schooling systems, a strong and independent media and reliable communications systems. It could tackle this issue by spending a fraction of the money it has invested in hosting the FIFA World Cup.

If the bill passes as is, it will not provide the clarity that campaigners are seeking. It is not evident how it will reduce the number of persons seeking or receiving grants because the definition is not clear. It also does not move South Africa towards a more progressive form of social inclusion in its approach to disability law. Disabled South Africans have equality on paper, but programs to educate and integrate them have fallen short of the mark. It is perhaps time that the government think of creating dedicated legislation to protect the rights of an estimated 6% of their population. By doing so they will create legislative cohesion and can more efficiently strive to reach the goals set by the Constitution and the Convention.

[Legal Frontiers Comment: Legal Frontiers thanks the Rathlyn Foundation for its support of blogs relating to Disability & the Law]

[2] Convention on the Rights of Persons with Disabilities, 30 March 2007, UNGA A/RES/61/106, Article 5(4).

The blatant exclusion of people of disabilities from immigration to Canada on the basis of disability stems back to the 1910 Immigration Act which altogether banned the immigration of people with mental disabilities. The 1927 Immigration Act expanded the basis for refusal to entry to Canada to physical disabilities as well. The subsequent amendment of the Act in 1976, introduced a less blatant discriminatory provision. Under this Act, people with disabilities could be excluded from immigration because they might place “excessive demands” on health or social services. This practice acquired a new dimension with the passing of the 1985 Immigration Act, which had s. 19(1)(a)(ii), and laid the foundations of the current 2001 Immigration and Refugee Protection Act.[2]A slight re-formulation of the Act did not eliminate the prohibitions, but simply rephrased them. Although offering hope to some individuals, this latest amendment of the Act left untouched prohibitions denying immigration to persons with disabilities that “might reasonably be expected to cause excessive demands on health or social services”.[3] This latest amendment of the Act materialized in the Hilewitz and De Jong cases.

The 2005 Hilewitz v. Minister of Citizenship and Immigration and De Jong v. Minister of Citizenship and Immigration cases have been hailed as a step forward for persons with disabilities in Canada. Judge Rosalie Abella added a supplementary factor in the way disabled applicants are assessed. She found it incomprehensible to deny immigration to “all persons who are intellectually disabled, regardless of family support or assistance”. Hence, the wealth of families must be taken into consideration when their children are deemed inadmissible to identify whether they place “excessive demands on health or social services.”[4] Alongside these cases, the ratification of the UN Convention on the Rights of Persons with Disabilities can be said to be the latest milestone for the Canadian disability rights community.

This UN Convention provides additional hope that the provisions of the Immigration & Refugee Act can be rendered inoperative by virtue of Article 18, or the Liberty of Movement and Nationality provisions. Under art. 18 of the Convention, “States Parties shall 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, including by ensuring that persons with disabilities…(b)Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement.”[5]

The latest case of Chris Mason’s deportation on the basis of his disability demonstrates that without the Convention, the Immigration Act will continue to provide a legal basis for discrimination against persons with disabilities. Chris Mason is a British citizen who lived in Canada, and while working as a long-haul truck driver, became paraplegic on the job. After his visa expired, Immigration officials refused granting Mason a permanent resident status because he would create an undue economic burden under s. 38(I)(c) of the 2001 Immigration Act.[6] This latest 2009 case of a refusal to grant status to a person because of his disability would be deemed unacceptable under the Convention. Hence, Canada’s recent ratification of the UN Convention of the Rights of Persons with Disabilities offers hope that individuals will have an additional legal recourse to obtain a remedy for the alleged discrimination perpetuated under the current Immigration Act.

[This entry was made possible by the Rathlyn Foundation Student Activities Endowment.]

Belaouni’s legal struggles showcase many of the obstacles that disabled applicants face in pursuit of legal status in Canada. What is the attitude of Canada’s immigration system towards disabled applicants? What does medical inadmissibility entail in the context of Canadian immigration law? In order to address these questions, it is important to describe Belaouni’s legal struggles in relation to two commonly cited cases on disability and immigration law in Canada, the Hilewitz and De Jong cases.[1]

The Algerian man who had lost his eyesight in his mid-twenties, fled to New York City in 1996 after a civil war unraveled in his country. Apprehensive about his future in the USA, a country where racial prejudice had spiked following the 9/11 terrorist attacks, Belaouni sought refuge in Canada in March 2003. He was denied status on the basis that he was unemployed and because he did not have family in the country. Ever since his arrival, this man and hundreds of supporters standing behind him have fought steadfastly to prove that, regardless of his disability, he can be a functioning member of Canadian society.

In addition to running a radio broadcast from the Church where he taught French and Arabic and sent messages, and before going into a sanctuary, Belaouni volunteered for the Multi-Ethnic Association for the Integration of Persons with Disabilities. His many attempts in finding employment were unsuccessful. In an interview, he admits: “In Canada, the discrimination is not because I’m Muslim or Arabic, but because I’m blind.”

According to the Canadian National Institute for the blind, only 25% or working people with vision loss are employed and only 30% of those have permanent employment.[2] These systemic barriers in the integration of blind residents in Canada are illustrative of the debates that often surround the topic of disabled applicants’ treatment under Canadian immigration law. Another systemic impediment in the admission and integration of disabled people into Canadian society is Section 19(1)(ii) of the former Immigration Act.[3] According to this provision, one can be denied an application for permanent resident status in Canada on grounds of medical inadmissibility, namely because of a disability that would cause an excessive burden on Canada’s health care system. A similar paragraph 38(1)(c) came into force at the repeal of the former Immigration Act and the passing of the new Act in 2001.[4]

The question on medical inadmissibility as ground for rejection of one’s admission as a permanent resident arose before the Courts in both the Hilewitz and De Jong cases. In these cases, both applicants, although deemed qualified under the “investor” and “self employed” classes set out in the Immigration Act, were denied admission because a dependent child suffered from an intellectual disability.[5] The issue raised was whether the resources of the Hilewitz and De Jong families should be ignored in determining if the disabled children would create an excessive burden on Canada’s social services.[6]

The Court concluded on an analysis of paragraph 19 of the former Immigration Act that a mere finding of ineligibility because his or her admission “would” or “might reasonably be expected to cause excessive demands” does not satisfy the intent of the legislation.[7] A further analysis of Ontario’s Developmental Act made by the Court led it to find that Ontario considers financial contributions from families and their ability and willingness to contribute a significant portion of the costs associated with certain social services provided by the province.[8]

Furthermore, the Court made a significant change in its reasoning. After embarking on a review of legislative history, the majority Judges concluded that there had been an important shift in approach taken by the Courts: from one based on an unconditional refusal to a more context-based and individualized assessment, as expressed by Justice Abella in the following paragraph:

43. “To do so, the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with willingness and ability of the applicant or his or her family to pay for the services.”

Effectively, the majority cast aside the standard used by the Federal Court of Appeal, which held that non-medical factors, such as family support and the ability and willingness to pay, were not relevant considerations, and instead the Supreme Court reaffirmed the contrary.

The successful outcome in the case of Abdelkader Belaouni is reminiscent of the principle of “individualized assessment”, asserted in Hilewitz and De Jong. This approach is perhaps more adequate in ensuring that disabled persons are not placed in one single category, but that their cases are carefully reviewed on an individual basis. It remains to be seen whether the individualized approach provides a viable alternative to addressing ableism within Canada’s immigration system.

[This entry was made possible by the Rathlyn Foundation Student Activities Endowment.]

[2] Canadian National Institute for the Blind, “Fast Facts about CNIB.” http://www.cnib.ca/en/about/media/vision-loss/Default.aspx (accessed on February 1, 2010)

[3] Hilewitz v. Canada (Minister of Citizenship and Immigration) and De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 at par. 3

[4]Immigration and Refugee Protection Act (2001, c. 27)

http://laws.justice.gc.ca/eng/I-2.5/page-3.html#anchorbo-ga:l_1-gb:l_4

[5] Hilewitz supra at para 3

[6] Hilewitz supra at para 73

[7] Hilewitz supra at para 68

[8] Hilewitz supra at para 69