A note on language: I use both ‘identify-first’ (disabled person) and ‘people-first’ (person with a disability) language throughout this article because English-speaking disability advocates use (and request that other people use) one or both of these. People with disabilities are not a monolithic group, and different people have distinct preferences of how they would like to be referred to. For example, many people in the autistic community strongly prefer identity-first language (autistic person), while many people in the intellectual disability community strongly prefer person-first language (person with an intellectual disability). Even within these smaller communities, people have individual differences and preferences.
Introduction
For years, disabled activists and disability justice scholars have called on nations to eliminate ableist assumptions about who constitutes a “desirable” migrant from their immigration regimes. The Convention on the Rights of Persons with Disabilities (CRPD) affirms this demand in Article 18, under which state parties must “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….” Article 18 works in conjunction with CRPD Article 5, which prohibits “all discrimination on the basis of disability,” including in the context of immigration policy. The corresponding General Comment 6 clarifies that, in addition to direct discrimination, Article 5 prohibits indirect discrimination—“laws, policies or practices [that] appear neutral at face value but have a disproportionate negative impact on a person with a disability.”
This article reviews several of the many ways in which immigration laws continue to discriminate against and limit the free movement of disabled people despite the mandates of Article 5 and Article 18 to the contrary. Although this problem is global—Australia’s discriminatory Migration Act is one infamous example—this article will focus on the Canadian and U.S. immigration regimes. Canada is a full party to the CRPD and has made no declarations or reservations to Articles 5 or 18. The U.S. signed the CRPD but has not ratified it. Still, a comparison of U.S. policy to CRPD standards remains relevant because the U.S. government has long claimed that U.S. policy meets or exceeds the CRPD’s demands.
Canadian and U.S. Immigration Law
According to many disability justice scholars and advocates, “Canadian immigration law has always viewed potential immigrants with physical or mental disabilities or impairments as undesirable citizens.” Under the Canadian Immigration and Refugee Protection Act §38(1)(c), “a foreign national is inadmissible on health grounds if their health condition…might be reasonably expected to cause excessive demand on health or social services.” This section—commonly referred to as the “excessive demand” clause—is further defined in the corresponding Immigration and Refugee Protection Regulations. For forty years, those regulations broadly defined “excessive demand” to admit only those whose needs for government-funded health or social services (including special education) fell under a low cost threshold. When the cost of services needed to meet a person’s needs was estimated to exceed that threshold, the person would be deemed inadmissible under §38(1)(c). Activists have long-critiqued the policy as discriminatory and in violation of CRPD Article 18 and, in late 2017, the House of Commons Standing Committee on Citizenship and Immigration issued a report expressing similar concern that the policy violated various Canadian human rights obligations. In response to this report and to ongoing activism, the Immigration, Refugees, and Citizenship Canada agency, temporarily tripled the cost threshold in 2018 (a change made permanent in 2022). While the change reduces the number of disabled people declared inadmissible, the updated cost threshold continues to be met with disappointment by activists, who argue that the existence of any cost threshold discriminates against disabled people and who continue to call for the complete repeal of the “excessive demand” clause.
Under the U.S. Immigration and Nationality Act (INA) § 212(a)(4), any non-U.S. citizen seeking a visa, admission, or adjustment of legal status will be declared inadmissible when that person, “…at the time of application for admission or adjustment of status, is likely at any time to become a public charge….” In 2019, the definition of “public charge” was infamously expanded by the U.S. Department of Homeland Security (DHS) under the Trump Administration to mean any non-citizen “…who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” In a 2022 Final Rule, President Biden’s DHS changed course by reinterpreting the definition of “likely at any time to become a public charge” to mean, “likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance [i.e., Supplemental Security Income (SSI)] or long-term institutionalization at government expense” (emphases added). While much narrower than the 2019 Rule, DHS’s insistence that the 2022 Rule does not permit discrimination on the basis of disability rings hollow for many disabled activists who understand that many people with disabilities living in the U.S.—particularly those with intellectual and psychosocial disabilities and people of the global majority—would still fail the test: in the U.S., only 37.2% of people with a disability aged 16-64 are employed, archaic SSI total asset limits (which, for the last 34 years, have prohibited SSI recipients from holding more than $2,000 in savings) keep disabled people trapped in poverty, and institutionalization of disabled people remains common.
Anti-Black racism embedded within international and domestic immigration law compounds these barriers to free movement for people with disabilities coming from any African nation, for whom—among many other systemic barriers to free and safe movement—even temporary travel to Canada and the U.S. requires a visa. This expensive and opaque visa application process (which regularly results in non-appealable denials) stands in stark contrast to travelers coming from predominantly white and European nations, who can travel temporarily into both Canada and the U.S. “visa-free.” Disabled women, girls, and gender-diverse people likewise face additional barriers to free movement imposed by the widespread cis-heteropatriarchy within immigration and intersecting systems.
Moving Forward
Despite recent reform efforts in both Canada and the U.S., the immigration regimes of both nations continue to limit the free movement of disabled people, a reality made worse for racialized women, girls, and gender-diverse people with disabilities. Canada and the U.S. must do much more before their laws reflect what disabled activists and the CRPD demand–a repeal of provisions that have a disproportionate and negative impact on the free movement of people with disabilities, such as Canada’s “excessive demand” and the U.S.’s “public charge” clause.
Author Biography: Elizabeth Schroeder is a Senior Moderator of the International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Master’s of Education in Special Education from Vanderbilt University and a Bachelor’s of Science in Psychology from the University of North Carolina at Chapel Hill. She is currently an exchange student at McGill University Faculty of Law in Montréal, Canada.