Are you kidding me? With nearly four decades under our collective belts of global experience working on HIV and AIDS, we are past considering it acceptable to link someone’s health status with their perceived sexual “moral values.”
Such were my thoughts after reading and reflecting on an article in The Toronto Star this month: “Decision-maker slammed as ‘Moral Police’ for refusing immigration to HIV-positive man.”
I have researched medical inadmissibility decision-making and the exclusion of people with HIV in the Canadian immigration system for the past 10 years, so I paid close attention.
The article ushers readers into the everyday world of immigrant applicants and their families while intersecting with the administrative decision-making at Immigration and Refugee Board of Canada (IRB).
Specifically, our attention is focused on a decision-maker (adjudicator) who, in the course of his work, assesses and denies applications for Canadian permanent residency. Recently he has done this in ways that need examining and critiquing, because they are deeply troubling and wrong.
The case of A.B.
We need to decode, digest and discuss the problems that stare back at us through the news article. Here are the salient details of the case.
For the past decade, the Canadian daughters of A.B. and his wife have been working to bring their parents to Canada from China. Through mandatory HIV screening in the immigration medical examination, their father was revealed to be living with HIV, which made him ineligible to immigrate under prevailing rules of medical inadmissibility.
The daughters appealed this decision to the Board, requesting that the state allow their parents be allowed to reunite with them for humanitarian and compassionate reasons. Their parents’ situation in China is such that they will now experience prejudice and discrimination because of his HIV status.
The adjudicator denied the appeal, and excerpts from his assessment show that his decision was tied to his disagreement with A.B.’s sexual practices and choices.
The IRB does not have HIV-specific guidelines to inform its workers. The decision on A.B.‘s case, explicitly rooted in moral reasoning, was chastised and rejected by another IRB official. Because of this disagreement, the sisters will have their appeal reconsidered, which means that the opportunity for their parents to settle in Canada remains a possibility.
But this case should never have reached this point. We should be well beyond the idea of associating a person’s HIV status with personal views on the morality of sex, such as extra-marital relationships and sexuality.
The adjudicator’s decision to deny this application was biased by his own views on sexuality. His moral reasoning, though familiar, has no place within the IRB, or the immigration system more broadly. For this reason, the grounds for A.B.’s appeal need to be assessed to halt the chance of further discrimination.
New frameworks
A massive body of writing by people with HIV and AIDS, and others documenting both humane and prejudicial treatment related to health status, has accumulated over the last 40 years. Consequently, we know the profound implications on people’s lives, both personal and professional, that result from these types of decisions.
The association between people with HIV and so-called bad behaviour, poor choices and ill practices — that once upon a time was used as a dominant lens through which to see and understand this infection and the people who have it — has long ceased to be acceptable.
Thankfully, we have arrived at significantly more sophisticated ways of understanding HIV and AIDS. Adjusting and updating what we know and how we practise policy in relation to these health conditions is necessary.
An IRB adjudicator who plays an influential role in a semi-judicial context must be made aware of these new realities about HIV and AIDS, and held to practice it.
Through a global interdisciplinary body of work, we know the origins of most of what makes us healthy or sick are social and structural.
The prejudice shown to A.B. by the Canadian IRB highlights the importance of having a mechanism in place within the immigration system to catch, review and reject such prejudicial and unacceptable decisions.
This example of blatant prejudice is a part of a bigger story about how the Canadian immigration system processes applications made by people with HIV infection. There are more directives governing HIV infection than any other health condition in the immigration system.
This is a consequence of the addition of mandatory HIV testing into the medical examination in 2002. The HIV testing policy has been producing avoidable inequities ever since.
Systematic exclusion
The overwhelming majority of permanent residency applications are filed and decided upon outside of Canada. Immigration medical examinations take place within conditions and in contexts that the Canadian state can not adequately or be reasonably expected to monitor.
Potential immigrants who have undergone these examinations often do so multiple times because of immigration processing wait times. In interviews with me, applicants have talked about the “ontological insecurity” — the acute sense of being unable to know what comes next — that this process produced for them.
HIV screening has produced myriad ways of intervening, monitoring and ultimately excluding people with HIV from the possibility of permanent residency more systematically than any other health condition. This prevailing focus on HIV within the immigration system is unjustified and unwarranted.
The consequences of a hyper-focus on one health condition over another has had the unintended consequence of pitting one disease against another, and of diverting attention away from conditions more generally experienced by more people.
This is poor population health practice. Disease-based guidelines governing the work of IRB functionaries must be avoided because they are both unnecessary and carry the risk of doing more harm than good.
Medical gate-keeping
The IRB’s assessment of A.B. as inadmissible — and its impact on his family — is one decision in a long time line of many others that demonstrates how medical gate keeping has been practised in Canada.
Since before Confederation, prospective immigrants with particular forms of disease and disability were excluded on the basis of state decision-makers’ assumptions about moral standing.
Medical exclusions and the state’s hyper-scrutiny of certain people (for example: women, racialized people and individuals with epilepsy and mental illness) have existed throughout Canadian history.
Based on A.B.’s case, it’s clear that assessments of and decisions about people with disease and disability, including HIV, can be arrived at problematically by decision-makers within the Canadian immigration system.
We need to be vigilant about identifying errors and producing correctives about what goes wrong within this very large bureaucracy. We can do this by demystifying institutions and understanding the dominant forms of knowledge they produce about what is right and wrong. This will point us to specific, rather than general, places to act and intervene on societal and structural levels.
Removing medical inadmissibility from Canadian immigration legislation, and the accompanying disease-specific policies — mechanisms aimed at preventing people with disease and disability from immigrating permanently — is long overdue.
The way the state currently evaluates permanent resident applications from prospective immigrants with HIV is “much lower than the threshold that may be derived statistically.”
When Immigration, Refugees and Citizenship Minister Ahmed Hussen and his government deliver on their recent promise to do away with impediments to permanent settlement for people with disease and disability, Canada will be aligned with the majority of world countries that have either already done away with them or never had such prejudical immigration rules, policies and practices in the first place.
Author: Assistant Professor, University of Toronto
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