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Canadian court calls refusal of immigrant healthcare cruel and unusual

Meanwhile, anti-immigration fervor reaches the boiling point on the Arizona border
Meanwhile, anti-immigration fervor reaches the boiling point on the Arizona border
Photo by Sandy Huffaker/Getty Images

As many politicians in the U.S. criticize President Obama and even call for his impeachment over the national crisis in immigration near the border shared with Mexico, Canada has its own immigration issues. Like the United States, Canada has tried in the past several years to “get tough” on immigrants, and in 2012 the result was that the Conservative Canadian government denied healthcare to migrants. Of course immigrants in the U.S. are not covered even under the recent Affordable Care Act unless they can show that they are lawfully allowed in the U.S., so this 2012 measure in Canada wouldn't have raised an eyebrow south of the Canadian border.

But in Canada, this move made a huge impact on Canadian immigration and refugee law practice and was challenged, and now the Canadian Federal Court has held that the denial of essential healthcare to thousands of immigrants was unconstitutional under Canadian law. The cases brought to bar have also proven that the 2012 denials also actually cost Canada money overall by shifting the cost burden from the government system (which can save cost by dealing in volume and through established channels) towards charities and the Canadian provinces on what has essentially been an ad hoc basis.

Many see the 2012 cuts as a political move by conservative forces, and here in the U.S. that is easy to believe given our own political climate towards immigrants.

The Canadian ruling was based on multiple cases in which immigrants were denied critical healthcare services based on lack of funding following the 2012 changes in the law. A Colombian man nearly lost his sight after his retina detached and he was not treated; an Afghani dishwasher living in Canada cannot get insulin thanks to the 2012 changes; and yet another case showed that many pregnant refugees could not get prenatal care since doctors and hospitals doubt whether they could pay their bills.

The recent ruling itself found that the 2012 changes refusing funding for medical care for immigrants were unlawful because they violated the Canadian Charter of Rights and Freedoms, and amounted to cruel and unusual punishment. The court pointed out that the refusal of healthcare is particularly likely to impact children and that this is part of the reason why the practice is cruel and unusual.

Many legal critics in the U.S. believe that border detention centers, particularly those that house children, are in fact cruel and unusual, but thus far there has been no corresponding court finding.

Since 2005 Citizenship & Immigration Canada (CIC) has been responsible for carrying out the mandate of Canada’s immigration program. Canada Border Services Agency (CBSA) handles border functions. Under the umbrella of CBSA is Canada Customs and other departments. CIC and CBSA share a joint immigration operations mandate, but CIC alone covers policy issues.

All immigration law in Canada is controlled by the Immigration & Refugee Protection Act (IRPA) of 2002. In Canada, the titles “Landed Immigrants” and “Permanent Residents” mean the same thing; these people are new immigrants to Canada who are admitted as permanent settlers. Permanent residents enjoy all the same right as Canadian citizens except they cannot hold a passport, vote, or run for office. They must also adhere to the Canadian residence obligation to maintain their status and physically remain in Canada for 730 days out of a five year period.

Immigration law in the U.S. used to be very similar to this Canadian immigration and refugee law structure. Now that ICE is controlling immigration law in America, however, enforcement and policy both look somewhat different than they did. What are the odds of seeing a decision about immigrant children and cruel and unusual punishment in the U.S.? Slim to none, at least right now.

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