HIV TESTING OF IMMIGRANTS AND REFUGEES
31 January 2001
HIV TESTING OF IMMIGRANTS AND REFUGEES
31 January 2001
1. The Canadian Council for Refugees opposes the mandatory HIV testing of prospective immigrants to Canada. A resolution to this effect was adopted at the December 2000 Annual General Meeting of the CCR (Resolution 18, see appendix).
2. Discrimination
To impose mandatory HIV testing on immigrants would be discriminatory,
since immigrants would be the first and only group of people on whom Canada
would impose mandatory HIV testing. The Canadian population as a whole
is not subject to mandatory testing. No sub-group of the Canadian population
is subject to mandatory testing. It would be wrong to single out prospective
immigrants for mandatory HIV testing.
The Canadian Charter of Rights and Freedoms prohibits discrimination on certain grounds. Section 3 of the Immigration Act requires that immigration policy, rules and regulations relating to admission to Canada be subject "to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms." In our view, imposing mandatory HIV testing on immigrants would discriminate in a manner prohibited by the Charter.
The international community has also emphasized the need to approach the issue of HIV/AIDS from the perspective of human rights. Following the Second International Consultation on HIV/AIDS and Human Rights, held in Geneva from 23 to 25 September 1996, the UN Commission on Human Rights adopted a resolution emphasizing "the need for intensified efforts to ensure universal respect for and observance of human rights and fundamental freedoms for all ... and to prevent HIV/AIDS-related discrimination and stigma" (UNCHR res. 1997/33, UN Doc. E/CN.4/1997/150 (1997).
3. Xenophobia
The proposal to discriminate against immigrants by imposing mandatory
HIV testing must be seen within the context of xenophobia. Canada has a
long history of prejudice against newcomers as carriers of disease and
as persons inferior physically to the Canadian born. For many years large
numbers of arriving immigrants were detained on health grounds, often for
conditions that were not contagious or infectious. At various periods of
our history there have been loud and irrational calls for measures to protect
Canada against immigrants perceived as a class dangerous to the health
of Canadians.
These prejudices have by no means died out, as is shown by the exaggerated response to Tibetan and other refugee claimants arriving at the US-Canada border in 1999, when tuberculosis was an issue. Some of the measures put in place had no medical rationale and were offensive to the claimants (for example, throwing away any objects touched by the claimants and imposing X-rays on claimants who might recently have been in the presence of Tibetans).
A decision to impose mandatory HIV testing on prospective immigrants will foster among Canadians the xenophobic prejudices that portray newcomers as carriers of disease. It will also create the misleading public impresion that HIV/AIDS is not a problem that concerns all Canadians, but rather an imported problem that can be addressed by exclusion. In the absence of a compelling rationale for the proposal, one may ask to what extent the proposal itself is informed by xenophobic prejudices.
4. Racism
Racialized persons make up a significant proportion of immigrants;
among immigrants, the racialized tend to be more readily identified as
immigrants, while non-racialized immigrants are often more quickly accepted
as "Canadians." A decision to impose mandatory HIV testing on immigrants
may therefore foster racist prejudices among the Canadian population that
AIDS is particularly a problem of racialized groups, rather than a problem
facing all of humanity.
5. Danger to public health or to public safety
HIV positive persons do not constitute a danger to public health or
to public safety. Unlike many other infectious diseases that could threaten
the Canadian public, HIV is not transmitted through casual contact. Government
policies, such as mandatory testing, provide only an illusion of safety.
The proposal to test and exclude for public health reasons undermines years
of public education which has correctly emphasized that individuals must
themselves be responsible for preventing transmission by using safe practices.
It would be wrong to move towards concluding that prospective immigrants, simply by virtue of their HIV positive status, are inadmissible under S. 19(1)(a)(i) of the Immigration Act, i.e. that "they are or are likely to be a danger to public health or to public safety."
The International Guidelines on HIV/AIDS and Human Rights, adopted at the Second International Consultation on HIV/AIDS and Human Rights in 1996, expressly address this issue. The Guidelines point out, under the heading of The right to freedom of movement that "[t]here is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status."(1)
6. Protecting Canadians from HIV
It is wrong and misleading to suggest that HIV screening will protect
Canadians from HIV. Transmission of HIV from Canadian to Canadian is a
far more significant problem than new immigrants or refugees passing the
infection on. Insofar as the virus may be brought in across the border,
the carriers may be Canadians returning after travels abroad during which
they engaged in unsafe practices or tourists and business people visiting
Canada.
It is widely recognized that the key to prevention is education about safe practices, not compulsory testing.
7. Excessive demands on health and social services
Persons who test positive for HIV should not be automatically considered
inadmissible on grounds of excessive demands on health and social services
(19(1)(a)(ii)). Each case must be individually evaluated, taking into account
the contribution that the person may make to Canada as well as the likely
costs. In particular, people who are not symptomatic can expect, with medications
currently available in Canada, to lead healthy and productive lives for
many years before becoming ill.
Furthermore it is important to note that other diseases and conditions may impose equal or greater demands on health care. HIV should not be singled out for testing. Coronary diseases and cancer can be extremely costly. Habitual smokers often suffer from expensive diseases.
The International Guidelines on HIV/AIDS and Human Rights provide guidance also in this area. Again under the section on The right to freedom of movement, they state: "Where States prohibit people living with HIV/AIDS from longer-term residency due to concerns about economic cost, States should not single out HIV/AIDS, as opposed to comparable conditions, for such treatment, and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency."
8. Effects of testing overseas
In many countries from which immigrants and especially refugees come,
undergoing the medical examination is difficult, because of problems of
access and delays in communication. Sometimes there are allegations of
corruption, which are difficult to investigate from Canada. The examinations
involve costs borne by prospective immigrants. For many refugees, these
costs become part of a debt to the Government of Canada faced by refugees
as they seek to start a new life in Canada. Imposing a mandatory HIV test
would add to all these difficulties, delays and costs.
In the case of HIV testing there are additional perils because of the impacts of a positive finding. In addition to the need for counselling, which it is not clear is always going to be available, the CCR is concerned about the possible harm to people living in countries with coercive laws and practices affecting HIV positive persons. In accepting as refugees some claimants whose claim was based on their HIV status, Canada has recognized that in some cases discrimination against persons with HIV reaches the level of persecution. It needs therefore to be recognized that imposing HIV testing on immigrants is likely in some cases to expose individuals to persecution.
9. Effects of testing in Canada
Some prospective immigrants apply for permanent residence from within
Canada. Since mandatory testing on these people would be taking place here
in Canada, the discriminatory nature of imposing the test on them and not
other Canadians would be particularly visible. A significant proportion
of those who apply within Canada are Convention Refugees so determined
by the Immigration and Refugee Board and sponsored spouses. The former
group is already exempt from medical inadmissibility and the government
has announced its intention of exempting sponsored spouses and dependants
from inadmissibility on the basis of excessive medical demand. There would
therefore be no rationale for testing these groups linked to the Immigration
Act. Since mandatory testing is not indicated for the population at
large, neither is it for refugees and immigrants.
10. Exempting refugees and family class
It is particularly important that HIV status not be a bar to permanent
residence in Canada for persons who have compelling reasons for being in
this country. This includes Convention refugees, persons who face risk
on return and persons accepted on humanitarian grounds. It also includes
people who are seeking to reunite with family members already in Canada.
The International Guidelines on HIV/AIDS and Human Rights make
the same point when addressing applications for permanent residence from
persons with HIV or AIDS. "In considering entry applications, humanitarian
concerns, such as family reunification and the need for asylum, should
outweigh economic considerations."
APPENDIX
WHEREAS : 1. HIV positive persons are not a threat to public health or safety;
2. Instituting mandatory HIV testing for all prospective immigrants is discriminatory since this would be the only group for whom mandatory testing is imposed;
3. Testing could significantly harm people identified as being HIV positive who live in countries with coercive laws or practice;
THEREFORE BE IT RESOLVED that the CCR oppose mandatory HIV testing for prospective immigrants and raise its opposition with Citizenship and Immigration Canada.
ADOPTED BY THE CANADIAN COUNCIL FOR REFUGEES, DECEMBER 2000
1. http://www.unaids.org/publications/documents/human/law/3797.html
Further information on this issue is available from the Canadian HIV/AIDS Legal Network
