One of the shortcomings of liberal political theories of the state is the assumption of its “ethnocultural neutrality”, the notion that a state does not favour any particular ethnicity or culture within its boundaries. Discourses on minority rights and multicultural citizenship have called to question this presumption of neutrality.[2] Every society tries to promote what Professor Will Kymlicka calls a “societal culture” – certain cultural values that are minimalist and can be diffused widely amongst individuals, leading to a sense of collectivity. A common culture serves an important role, since in its absence, states would suffer a lack of sufficient social cohesion.[3] Thus, all liberal democracies promote the integration of immigrants and minorities into the societal culture.[4] However, the very presence of a societal culture suggests some level of non-neutrality, as this culture will inevitably favour some individuals (i.e. those whose native culture is consistent with the societal culture) over others.

Kymlicka suggests that the “ethnocultural neutral” state be replaced with the notion of the “nation-building” state.  Nation-building states are those in which one (or more) societal culture is promoted by the state authorities.[5] Kymlicka argues that at the core of these societal cultures is a common language and common institutions. A common culture focused on language creates a thin sense of identity, even in societies with very diverse individuals. The rhetoric sometimes employed in the promotion of a societal culture can seem deeply ethnocentrically partisan – for example, the manner in which certain Quebecers promote usage of the French language in Quebec.  However, the nation-building project should not be viewed as “purely a matter of cultural imperialism or ethnocultural prejudice”.[6] A societal culture can be a benefit to all of individuals in the society, including immigrants, minorities and others who may be the targets of integration into the culture.

Promoting a societal culture helps foster social mobility, social cohesion, and democratic participation.[7] First, when members of a minority-language community in a society do not learn the majority language, they risk the danger of becoming ghettoized and missing various social and economic opportunities.  Training in a common language allows all individuals access to the workforce and, conversely, allows the workforce to quickly absorb such individuals and retrain them if necessary.[8] Second, a common language allows potentially diverse individuals to communicate with one another, exchange ideas and pursue projects of mutual interest.  Linguistic barriers can be a huge impediment to state planning on social welfare and in battling issues of discrimination and inequity.  A common language provides a common bond, thus allowing diverse individuals to tackle issues of societal concern.  Third, a common language allows linguistic minorities to more easily participate in the political sphere.  Successful democratic participation requires a common language so that individuals can have access to the relevant issues faced by different individuals.  Governing a society becomes immensely difficult “[i]f citizens cannot understand each other”.[9]

[2] Will Kymlicka, The New Debate on Minority Rights (and Postscript) in Anthony Laden and David Owens, eds. Multiculturalism and Political Theory (Cambridge: Cambridge University Press, 2007) at 34 [Kylicka-New Debate].

[3] Alan Pattern & Will Kymlicka, “Introduction: Language Rithts and Political Theory: Context, Issues, and Approaches” in Alan Pattern & Will Kymlicka, eds. Language Rights and Political Theory (New York: Oxford University Press, 2003) at 39 [Pattern-Kymlicka].

[4] Kymlicka-New Debate, supra note 2 at 35.

[5] I mention the possibility of more than one societal culture to accommodate the example of Canada, which can be viewed as hosting the societal cultures of both English and French speaking portions of the country.

[6] Kymlicka-New Debate, supra note 2 at 36.

[7] Pattern-Kymlicka, supra note 3 at 39.

[8] Ibid.

[9] Ibid. at 40.

The process for determining the asylum seeker’s admissibility is “deceptively simple”[2]: the judge must determine first, whether or not the claimant is gay, and second, whether they are, or they will be, in danger of persecution. Refugees claiming asylum on the basis of persecution related to sexual orientation fall under the residual category of “membership of a particular social group” (as distinct from the “traditional” categories of race, religion, nationality, political opinion under the UN Convention Relating the Status of Refugees.)[3] Canada has virtually no published guidelines on how the determination of homosexuality is made. Field manuals from Citizenship and Immigration Canada only note that homosexuality falls under the category of gender-based persecution, which itself is part of the “particular social group” class.[4] This lack of procedural specificity, as well as the tendency of the human rights discourse to frame gender-based violence as only affecting women, can create unfair outcomes for persecuted gay men seeking refuge in Canada.

In 2007, the Canadian press was abuzz with news that the claim of a young gay man from Nicaragua was rejected because he was not “gay enough” for the Immigration and Refugee Board judge.[5] Alvaro Orozco feared violence from his family and community in his home country, where homosexuality is illegal. The adjudicator, via videoconference, wondered why the (then) 21-year-old had no homosexual relationships during his 6 years living illegally in the United States, where he ended up after fleeing Nicaragua at the age of 12. Orozco’s defence took issue with the judge’s implication that he must have been sexually active as a young teenager to be considered a gay man, and also implored CIC to consider the fact that he feared coming out to the members of the church who supported him on his journey to Canada. Still, IRB adjudicator Deborah Lamont “determined on a balance of probabilities [that] the claimant did not pursue same-sex relationships in whatever capacity … because he is not a homosexual”[6] and Orozco was ordered to be deported.

When judges engage in the process of determining the validity of a foreign gay man’s claim to protection, they engage with notions of sexuality, gender, race, and culture that are contingent on the judges’ identities and perceptions. The process assumes that homosexuality is an immutable category and that it is possible to determine what a gay person looks, sounds, and acts like. A Federal Court judge suggested that refugee Board members relied on North American myths of gay men’s conduct in their denial of an Albanian man’s application:

The Board also doubted the Applicant was homosexual because he abstained from homosexual behaviour in Halifax.  The Board appears to apply a specific perspective on homosexual behaviour…. The Board appears to have applied, for lack of a better term, the North American perspective to assessing the Applicant’s behaviour when the Board speaks of going to a “gay club” and engaging in “sexual relations with any man”.  The Board does not identify the basis for his reasoning nor does he take into consideration the difference in how homosexuality may be viewed in Albania as opposed to Canada. [7]

We see that the process is often fraught with prejudice and stereotypes; the judge holds the foreign claimant up to an impossible standard based on the prevailing ideas of gayness in the domestic social imagination.

If the first part of the assessment, establishing the “gayness” of the claimant, is replete with problems; the second step, determining if the claimant has a credible fear of persecution in his home country, is equally as troubling in the jurisprudence. In the absence of guidelines, there is a tendency of some IRB adjudicators to ask whether the claimant, upon return to their home country, could reasonably “practice discretion” in relation to their sexual identity and remain free from persecution. One example is the case of Norbert Okoli, a gay Nigerian claimant whose removal order was overturned upon judicial review. The judge at first instance decided that he was unreasonable in disclosing his status as a gay man to a Catholic priest who he believed (mistakenly) to be gay. He also held that Okoli had an “internal flight alternative” in that he could have moved from his smaller town to the larger city of Lagos, relying on research stating that “homosexuals in larger [Nigerian] cities may not have reason to fear persecution as long as they do not present themselves as homosexuals in public”[8]. Essentially, this is condemning unsuccessful claimants to go back into the closet.

So, it would seem that a claimant can be too discrete, and risk having insufficient evidence for the judge to determine his homosexuality, as we saw with Orozco and Menaj. On the other hand, if he is too “out” in his conservative society his case will be discredited because he should have expected whatever persecution followed, like Okoli. Hopefully, the Canadian courts will look to the UK for some guidance. Just this year, a landmark decision was passed in the UK Supreme Court, explicitly rejecting the approach as seen in the Canadian examples. [9]

The British test elaborates and refines the old, two-part test. First, it is still asked, is the claimant indeed gay or a person who would be treated as gay in the country of origin? It is progressive in that the judgement notes the need for judges to take a culturally sensitive, non-relativistic approach to the nuanced reality of sexual identity. Then, it must be determined how the claimant’s situation would be upon his return. It is maintained that he cannot be expected to hide their sexuality, no matter how unreasonable this may be in the home country; to require him to do otherwise would be an affront to his human rights. From there, if the applicant reveals that they would conceal their gay identity upon return, the judge must seriously explore the reasons why (many judges are inclined to judge any intention to conceal as a disavowal of their homosexuality). Social, cultural, or religious pressures are not considered valid reasons and would result in a rejection. If it is due to real fear of persecution, then the judge must evaluate the foundation of this fear.

It is encouraging that Canadian superior courts are overturning unreasonable IRB decisions and condemning the discriminatory undertones (and overtones!) contained in them. However, the establishment of clear and consistent guidelines would reduce much of this need. Of course, Canadian society at large is still in the process of fully understanding and accepting LGBT identities and the decisions of immigration judges cannot be assessed in isolation from this fact. Still, clear policy directives could do much for refugees making claims based on homophobic persecution by assuring them a somewhat fairer chance at being accepted under the Convention.

[2] Jenni Millbank, “Imagining otherness: Refugee claims on the basis of sexuality in Canada and Australia,” Melbourne University Law Review 7 (2002).

[3] Office of the United Nations Commissioner for Human Rights, “Convention relating to the Status of Refugees, 1951,” http://www2.ohchr.org/english/law/refugees.htm.

[4] Citizenship and Immigration Canada, “Overseas selection and processing of Convention Refugees Abroad class and members of the Humanitarian-protected Persons Abroad classes,” August 13, 2009, http://www.cic.gc.ca/English/resources/manuals/op/op05-eng.pdf.

[5] Nicholas Keung, “Refugee claimant ‘not gay enough’,” Toronto Star. February 8, 2007, http://www.thestar.com/News/article/179467.

[6] Ibid.

[7] Menaj v. Canada (Citizenship and Immigration), 2008 FC 611, at para 15 and 17.

[8] Okoli v. Canada (Citizenship and Immigration), 2009 FC 332, at para 26.

[9] [2010] UKSC 31, at para 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

Many Canadians may find picking on members of a small diaspora community unappealing. But like other trends such as Ugg boots or skinny jeans, just because we find them distasteful doesn’t mean we can ignore them. And there’s no denying that discrimination against the Roma is back in style – just look at Europe.

According to Amnesty International, and despite a 2007 ruling against the practice by the European Court of Human Rights, Roma children in the Czech Republic and Slovakia are still routinely placed outside mainstream schools in “special schools,” ordinarily reserved for children with mental disabilities. In Serbia and Romania, groups of Roma have been evicted from their “unlawful settlements” (which, in Serbia, were then bulldozed), and forced into even more makeshift accommodations. To be fair though, as one Romanian Vice-Mayor noted, this was really positive discrimination since the evicted Roma were provided with free metal barracks to live in – the lucky devils! In Hungary, incidents of violence against the Roma have been on the rise, with 16 recorded by the National Police in 2008, resulting in 4 deaths.

How can Canada keep up with such proactive trendiness? Other countries give a clue as to the best way to proceed. Switzerland, France, Germany, and several Scandinavian countries are reportedly planning to deport large numbers of Roma back to Kosovo, from which they fled due to widespread discrimination and inter-ethnic violence. Italy has gone further, invoking emergency powers created by a 1992 law intended to cope with natural disasters in order to forcibly evict groups of Roma. They’ve made sure that there’s no opportunity for legal redress. Coupled with inflammatory anti-Roma rhetoric from the Italian media and local politicians, this has led to record numbers of attacks on Roma in Italy.

Has Canada missed the opportunity to get in on this blast from the past of a trend? Perhaps not. In July, Canada re-imposed its visa requirement for travellers from the Czech Republic, largely due to surging numbers of refugee claims by Czech Roma. As Immigration and Multiculturalism Minister Jason Kenney noted at the time, all those Roma claims were “undermining our ability to help people fleeing real persecution” – not the sissy faux-persecution outlined above. Today, despite reassuring the Hungarian government to the contrary in October, the Canadian government is considering re-imposing the visa requirement for Hungary because of Roma refugee claims as well.

These moves won’t alone cement Canada’s place among the hip discriminator crowd – particularly since we also reintroduced the visa requirement for Mexico in July due to large numbers of Mexican refugees fleeing rising levels of drug-related violence at home – but it’s a start. They at least demonstrate that we get the central idea of this trendy new wave of discrimination: the application of ostensibly neutral law in a way which disproportionately affects the target group. In each of the European examples mentioned above, the government in question defended its treatment of the Roma by claiming that it was merely applying the law in a rigorous, disinterested manner. In Italy, for example, the government has emphasized that its emergency powers are intended to deal with the “nomad emergency”, and so could apply to any nomad community within Italy – not just the Roma. By the same token, Canada’s refugee crackdown will affect all weak refugee claims, and not just those European Roma whose persecution the government has decided isn’t “real”.

Finally, for those bleeding hearts who don’t think we should discriminate against a historically disadvantaged group just because all the cool countries are doing it, there’s another good reason to pick on the Roma. Immediately prior to and during World War II, when anti-Semitism was still the hottest fashion, Canada consciously and systematically turned away large numbers of Jewish refugees who had managed to escape Nazi-controlled Europe, in some cases sending them back to the Germans. Now if we historically used immigration law to turn away one minority group facing certain death, and then years later didn’t do the same to another group facing sub-genocidal discrimination at home, then not only would we risk being uncool, we’d be inconsistent.

Then imagine how foolish we’d look!

Friends only to the hunchbacked?