LAW40038 Immigration Law

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Question:

Critically reflect upon Max Weber’s article “Immigrant disability in the United States of America and Canada”

Concentrate on the question “How does the article reflect on today’s laws that deny immigrant their rights and the problems immigrants face in canada today”

Answer:

This article compares the provisions of the United States immigration and refugee legislation. It allows for immigrants to stop persons with disabilities from immigrating into these countries.

These provisions are based on the history in each country. This shows that they have become less restrictive over time.

Canada’s policy regarding immigration legislation focuses on the exclusion of persons who can be expected to cause too much strain on the social or health services. There are however some exceptions (Churgin, 2000).

In Hilewitz v Canada (2005), the Supreme Court ruled that the medical officers must assess probable requirements on social services. They are not required to determine “eligibility for them”, but also whether the applicant or their family can pay for these services.

The court had ordered that the officials be required to perform individual assessments, not just a simple classification of the impairment.

This article suggests that the court’s emphasis on too much need for social services, rather than medical, may limit the effectiveness of this verdict (Weber 2004, Weber).

As a result of the interaction between the physical and psychological condition of individuals and the environmental and behavioral obstacles, disability can occur.

This idea related to disability was applied to the US and Canadian immigration laws. It was an attempt by the author to bring attention to the barriers to entry for those who might be affected.

In North America, there were a few clauses that prohibited immigrants from entering the country.

These excluded persons with cerebral disabilities and mental impairments, as well as those who are likely to become dependent.

While exclusions can result in excessive public resources being drawn, and persons with communicable diseases may still be present in the US or Canada, recent years have seen the US allow legalization of severely disabled and unrecognized immigration who are already legally present in the country.

The exclusions that prevented immigrants from entering the country for those with disabilities have been abolished by both Canada and the US (Green and Lin, 2002).

The United States naturalization requirements have also been liberalized.

However, the author notes that there are many obstacles.

There is still a lot discrimination in the US law regarding likely public charge exclusion. This is because it is up to consular officials abroad to decide unilaterally whether or not they will issue immigrant Visas.

One other thing to keep in mind is that criminal activity that is related to mental disability and includes petty crimes may result in expulsion from the US.

Only minor safeguards were provided to persons with mental disabilities during the removal proceedings.

Canada’s same situation applies. Parents with children who are disabled can be expelled from Canada due to the theoreticaltoo high requirements on public money. However, expulsion may not be possible in some cases.

This author points out, in this manner, that even though Canada and the United States have eliminated many grounds of exclusion particularly related to disability and conditions. However, a large number potential immigrants who are disabled are still disqualified because of speculations that too much social and medical support will be used.

The categorical exclusions that were made for those who had been classed as “mental defects, lunatics and idiots” in the past were a result the turn of century idea of Eugenics. It was a false science relating to the improvement of the country’s genetic stock.

Canada removed offensive and outmoded terms from its immigration legislation in 1976.

The provisions that allow for exclusion of individuals who can be expected put unreasonable demands on the health or social services were retained (Hahn 1994).

Many disability rights advocates talk about a social-model of disability. Conditions generally considered to be disabled are not necessarily so if they are set by society.

The wheelchair user does not have to be disabled. However, they can still use it for their physical limitations, such as narrower doors or curbs.

Stereotyping and popular attitudes may cause obstacles for persons with disabilities.

These can be viewed as limitations in the application of the social models of disability. But, they also highlight the possibility of changing social circumstances that allow persons with disabilities to fully participate in the economy and culture.

Modern reforms aim to eliminate social and physical barriers to equality by changing attitudes, installing ramps, and generally making accommodations (Butler, 2013).

The social model approach to immigration law allows us to ask if excessive demand clause or its US counterpart, public charge exclusion under US law, can be seen as anything other that the creation an artificial barrier for the quality of services provided to people with disabilities.

Persons with disabilities, as well as their family members, also have to pay taxes. In addition, they contribute equally to the social and economic wellbeing of society.

Also, social support works on an average basis. It separates the costs and risks between the different members of a specific population.

The family of a person with Down syndrome is not included in the social support formula. This only adds to all the challenges families who have a child with a severe disability will face (Anderson (2014)).

The author does however note that exclusions based on excessive demands have made some progress.

Canada’s courts have made it clear that each case should be considered individually.

If the courts find that the family member who is suffering from a disability is going to receive private resources, then the grounds for exclusion are not applicable.

However, courts have in some cases stopped deportation of immigrants because of disabilities related hardships.

It can be concluded that Canada is not suffering from the many problems that the United States has with deporting persons with mental impairments from the country.

They are unable understand immigration laws and cannot exercise their rights to stay in the country.

It is clear that discrimination based on disability will continue to be faced by those who already face it.

The author concludes that the recent US reforms in naturalization have provided significant accommodation for immigrant with disabilities looking to become citizens.

These reforms must be considered in Canada as well.

Canada’s legislators are now considering the recent changes which have made it harder for persons with disabilities to become citizens.

Refer to

“Equality and the Environment. The Interpretation Of ‘Reasonable Accommodations” in the Americans with Disabilities Act.

17:3 Journal of Rehabilitation Administration 101

“Immigrants, Civil Rights and Cross-National Perspective”, 1:1J Comparative Migration Studies 45 at 53

Mark C Weber 2004 “Opening The Golden Door: Disability & the Law of Immigration”, 8-1 J Gender Race & Just 153 at 156

“Immigration Internal Discretion Making: A View from Historical History.”

78.7 Tex LR 1633 at1638

“The Western, Rural Rustbelt. Learning from Local Fiscal Crisis in Oregon” 50/4 Willamette Rev 465 at (479-80

Green N.

Immigration, Washington, DC, Congressional Quarterly Press, at 22

“Poor people lose: Gideon, the Critique of Rights”, Yale LJ 2176 at 2183-55.

Case Law

Hilewitz v Canada (Minister for Citizenship & Immigration), 2005 SCC 57, paras 54-56

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