As medical inadmissibility experts, we are frequently asked to evaluate the risks of being refused entry to Canada because of the “excessive demand” that their health condition may impose on our health care system. The Coronavirus raises questions around the prospect of refusal based on another rarely used ground: that someone’s health may pose a risk to public health or safety.
This blog will summarize what Canadian immigration law is doing, has the power to do, and should do in the face of the threat of this rapidly spreading disease.
What is Canada doing?
First, there have been no travel restrictions to or from areas most affected by the Coronavirus for two reasons. First, there are no direct flights between Canada and the area most affected by the Coronavirus, Wuhan, China. Because of the heavy travel restrictions imposed by the Chinese government itself, Canada has found it unnecessary to impose restrictions to and from China. However, the Canadian government is advising against all non-essential travel to China.
Secondly, enhanced screening procedures have been implemented at Canadian airports, particularly airports in Vancouver, Toronto and Montreal. These screening measures include signage in several languages and additional questions at electronic kiosks and from CBSA officers.
The perceived low risk to people in China is demonstrated by a recent Federal Court decision in which a man asked the Court to delay his deportation to China due to his fears of contracting the virus. The Federal Court found that his risk was low because he was not being returned to a part of China most affected by the virus.
Canada has also recently issued an Operational Bulletin to deal with issues arising in a range of immigration applications in light of the Coronavirus.
This Bulletin advises that all Visa Application Centres in China have been closed and that immigration processing offices are operating with essential staff only. Therefore, applicants with pending immigration or temporary residence applications in Canadian offices in China can expect significant delays. The submission of biometrics and travel documents has been suspended.
Regarding medical examinations from China, the bulletin states that people who have undergone medical examinations in China will be reassessed if their results are due to expire within 4 to 8 weeks. Therefore, additional delays can be expected for those toward the end of processing of their immigration applications.
What can Canada do?
Canada’s immigration laws allow applications in any category to be refused if there are grounds to believe that an applicant likely poses a danger to public health or safety. Conditions such as untreated tuberculosis or syphilis are commonly captured by this provision. Prior to being refused, applicants are sent a warning letter and provided an opportunity to prove that they do not pose a risk. Applicants diagnosed with Coronavirus would likely argue that no risk exists because of measures taken by health officials to isolate them in hospital or quarantine settings.
At the extreme end, in the case of a person with a contagious disease who is willingly not complying with medical advice, Canada’s immigration laws authorize detention. However, it is much more likely that public health authorities would use coercive techniques to enforce medical compliance.
What should Canada do?
Canada should look to international law to determine the parameters of its response to the Coronavirus. International law authorizes a departure from human rights protections in the case of emergencies such as public health threats. However, such emergencies must be real and not imagined, and it is unlikely that the low incidence of the Coronavirus in Canada would justify its classification as a threat significant enough to curtail human rights. Second, even where an emergency has been identified, international law as stated in the Siracusa Principles states that restrictions should not be applied in a discriminatory manner. This means for example that Canada is not allowed to select people from a certain nationality or background for restrictive measures. This is not only the law, but it is sound policy for the control of contagious diseases. Italy’s focus on the Asian population did not stop an outbreak of the Coronavirus in that country; there was no evidence that that the origin of the disease in that country was linked to the Asian community. Similarly, our lesson from the spread of HIV was that the focus on the gay community led to the neglect of the disease’s spread within the heterosexual community.
Effective government policy in response to a perceived health threat is a policy which respects human rights.
If you have questions about the Coronavirus and medical inadmissibility, or any immigration and refugee issues, please don’t hesitate to contact us at firstname.lastname@example.org