2005:  NEW Q&A providing an explanation of immigration law and policy in Canada as it affects people living with HIV/AIDS, which we’ve just put out about 2 months ago to reflect some recent (positive) changes.  The link to use would be:
http://www.aidslaw.ca/Maincontent/issues/Immigration/ImmigrationQ&A2005.pdf
 
This document is also available in French, which may be of use or interest to some of your website readers.  The equivalent French document is at
http://www.aidslaw.ca/francais/Contenu/themes/ImmigrationF/ImmigrationQ&A2005-f.pdf


BACKGROUND

On 20 September 2000, the Toronto Star newspaper reported that Health Canada has recommended testing applicants for immigration for HIV, and excluding those testing positive.

According to Health Canada's population and public health branch, this is Canada's "best public health option."

At present, there is no mandatory test for HIV given during the medical examination that all applicants for permanent residence are required to undergo. A prospective immigrant's HIV status may however become known to immigration officials either through his or her response to a question on HIV in the form used by examining physicians or from a test that may be ordered if the examining physician considers the test to be clinically indicated. Prospective immigrants may be excluded from Canada on medical grounds if as a result of their medical condition they are or are likely to be a danger to public health or safety, or if their admission would likely cause excessive demands on health or social services. Current policy holds that persons with HIV do not themselves represent a danger to public health and safety, but they are generally prevented from becoming permanent residents because it is considered that they will place an excessive demand on the public purse.

As part of a major restructuring of its immigration policy and legislative framework, Citizenship and Immigration Canada (CIC) had asked Health Canada about potential changes in the medical screening components of the immigration process. Specifically, CIC had asked Health Canada to provide advice on "which medical screening procedures are required to protect public health."

Health Canada responded by creating the "Montebello Process" which, according to its designers, "uses decision tree methodology as the underlying scientific process to examine the rationale for medical screening" of infectious diseases. The "Montebello Process" was used to compare the public health outcomes of what Health Canada claimed to be the "only possible options": (1) no mandatory testing; (2) mandatory testing and exclusion of those testing positive from immigrating; and (3) mandatory testing, but no automatic exclusion (rather, certain public health interventions, such as counselling, would be used to reduce the risk of transmission).

Health Canada considered mandatory HIV testing of all prospective immigrants, and automatic exclusion of those testing positive, the best way to protect public health.

According to media reports, Dr Ronald St John, a Health Canada scientist, said that the "Montebello Process" calculated that, on average, "a migrant with an infectious disease like HIV transmits the condition to at least one Canadian resident." He added that Health Canada did not know how many HIV-positive immigrants enter Canada, but that "the estimate is one in 1,000"; that Health Canada "estimated that each annual group of immigrants and refugees coming to Canada would generate 37 HIV infections if they are not screened"; and that "screening reduces that probability." However, the "Montebello Process" and its outcome have been seriously put in question. HIV is 100 percent preventable. The assumptions underlying the statement that immigrants and refugees "generate" 37 HIV infections are simply false.

It is now up to Citizenship and Immigration Canada to make the final decision about whether HIV testing should become mandatory for immigrants. Minister of CIC Elinor Caplan told reporters that she would act on the Health Canada recommendation that all immigrants be tested, and has given instruction to her Ministry to study how to implement routine HIV testing. The media also reported that Caplan said that people with HIV (with the exception of refugees admitted from camps overseas and the spouses and children of people already admitted to Canada) would be barred both because they could put a strain on Canada s health-care system, and because they could endanger other residents of Canada.

The Canadian HIV/AIDS Legal Network (and many other organizations) have consistently opposed mandatory HIV testing of prospective immigrants and automatic exclusion of those testing HIV-positive, for the reasons set out in the sample letter above.

 

FOR MORE INFORMATION AND UPDATES

Additional background information can be found on the website of the Canadian HIV/AIDS Legal Network at http://www.aidslaw.ca/Maincontent/issues/immigration.htm. In the next days and weeks, the section on immigration and HIV/AIDS on the website will be regularly updated. In particular, we will post a paper providing an ethical analysis of HIV testing of immigrants, and a comprehensive legal analysis of the issues raised by immigration and HIV/AIDS.

"Fear, stigma and discrimination - unfortunately, HIV/AIDS still evokes these reactions in Canada and around the world. A key component of the Canadian HIV/AIDS Strategy is to address HIV/AIDS legal, ethical and human rights issues, and to protect and advance the human rights of people living with or affected by HIV/AIDS." (Health Canada, Canadian HIV/AIDS Strategy website) http://www.aidslaw.ca

The Canadian HIV/AIDS Legal Network is a partner organization of the AIDS Law Project of South Africa

 



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