Canada: Mandatory HIV Testing of Applicants for Immigration

The International Gay and Lesbian Human Rights Commission forwards the following call to action submitted by the Canadian HIV/AIDS Legal Network, calling for letters of protest against mandatory HIV testing of applicants for immigration to Canada.

For further information, contact:
Ralf Jürgens,
Executive Director,
Canadian HIV/AIDS Legal Network,
(514) 397-6828 (ext.223)

FORWARDED ACTION

On 20 September 2000, Canadian newspapers reported that Health Canada has recommended to Citizenship and Immigration Canada that testing all prospective immigrants for HIV, and excluding those testing positive, is the "best public health option." Subsequently, the Minister of Citizenship and Immigration, Elinor Caplan, stated that her department is indeed considering implementing mandatory HIV testing for all prospective immigrants to Canada, and excluding all those testing positive (with the exception of refugees and family-class sponsored immigrants) from immigrating to Canada on both public health and excessive cost grounds.

The public statements made on 20 September 2000 by officials from both Health Canada and Citizenship and Immigration Canada have portrayed persons living with HIV/AIDS as vectors of disease and potential dangers to Canadians. They have added to the climate of stigma and discrimination that persons living with HIV/AIDS already face in Canada. In addition, they have heavily stigmatized all immigrants, and created the misleading public impression that HIV/AIDS is a problem that does not concern all Canadians, but is an imported problem and one that can be addressed by exclusion, rather than by sound prevention efforts and compassion.

We are asking for your help. Please take a few minutes and use the sample letter below to express your disagreement with the direction considered by the two ministries. We can still win this battle and avoid serious damage to all immigrants and all persons living with HIV/AIDS.

Write by email or fax to all of the following:

Hon Elinor Caplan, Minister of Immigration Citizenship and Immigration
Canada
Jean Edmonds Tower South
365 Laurier Avenue West
Ottawa ON K1A 1L1
Fax: (613) 992-0887
email: Caplan.E@parl.gc.ca
Hon Allan Rock, Minister of Health Minister's Office - Health Canada
Brooke Claxton Bldg, Tunney's Pasture, A.L. 0913C
Ottawa ON K1A 0K9
Fax: (613) 952-1154
email: minister@www.hc-sc.gc.ca or Rock.A@parl.gc.ca

Your Member of Parliament (if you live in Canada). You can find the email address and fax number for your MP in an alphabetical listing at

http://www.parl.gc.ca/36/senmemb/house/MemberList.asp?Lang=E

And please send a copy of your email or fax to the Canadian HIV/AIDS Legal Network at immigration@aidslaw.ca (fax: 514 397-8570), to allow for evaluation of the response.

Please forward this message to your constituents, members, umbrella organizations, colleagues, and friends. Individual and organizational letters are welcome. Please excuse any cross-posting/forwarding: the delays, the broad variety of stakeholders, and the absence of a unified communication mechanism do not allow for better coordination.

SAMPLE LETTER

Dear [insert name of Minister/Member of Parliament]

I am writing to express serious concerns about
- recommendations from Health Canada stating that testing all prospective immigrants for HIV, and excluding those testing positive, is the "best public health option"; and
- statements by Citizenship and Immigration Canada that it is now considering implementing mandatory HIV testing for all prospective immigrants, and excluding all those testing positive (with the exception of refugees and family-class sponsored immigrants) from immigrating to Canada on both public health and excessive cost grounds.

For many reasons, I oppose mandatory HIV testing of prospective immigrants and automatic exclusion of those testing HIV-positive.

First, persons with HIV are not a threat to public health and safety. Unlike many other infectious diseases that could threaten the Canadian public, HIV is not transmitted through casual contact. Government policies, such as mandatory screening, provide only an illusion of safety for preventing HIV, which is transmitted through very private behaviours. 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 condoms (and sterile needles). The International Guidelines on HIV/AIDS and Human Rights, issued in 1998 by the Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS), expressly point out that "[t]here is no public health rationale for restricting liberty of movement or choice of residence on the ground of HIV status."

Second, if Citizenship and Immigration Canada chooses to institute mandatory testing policies on grounds of economic costs (not public health grounds), then it must do so in a non-discriminatory manner, and it must not exclude all prospective immigrants testing HIV-positive. HIV cannot be singled out for testing to the exclusion of other medical conditions that could impose a burden on the public purse. For example, one study found that the estimated cost of caring for coronary heart disease in the five-year period immediately following diagnosis is in fact greater than the cost of medical care incurred by an individual who tests positive for HIV (Zowall et al. Economic Impact of HIV Infection and Coronary Heart Disease in Immigrants in Canada. Canadian Medical Association Journal 1992; 147: 1163-1172). In addition, an increasing number of genetic tests are currently becoming available that may allow the prediction of diseases that are likely to develop. If we mandate HIV testing of immigrants, are such genetic tests also justified?

Many persons living with HIV lead long, productive lives. Not all immigrants with HIV will place an "excessive" burden on health and social services. Policy and practice must take into account the potential contribution, both monetary and non-monetary, that each individual immigrant can make. The International Guidelines on HIV/AIDS and Human Rights provide guidance in this area as well:

"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."

Third, immigrants would be the first group of people on whom mandatory HIV testing would be imposed by Canada since Canadians are, in most cases, protected from involuntary testing under the Charter of Rights and Freedoms. This would stigmatize all prospective immigrants and those already living in Canada. It would appeal to the deepest prejudices of people opposed to anyone they perceive as unlike themselves, of whom immigrants are a prime example.

Fourth, mandatory HIV testing gives rise to a number of humanitarian concerns with respect to prospective immigrants. The health-care workers undertaking HIV testing at the request of Citizenship and Immigration may not provide adequate pre- and post-test counselling, and Citizenship and Immigration Canada is not likely to be providing this support. Prospective immigrants who test positive may face stigma and discrimination in countries with coercive legislation or hostile populations.

The public statements made on 20 September 2000 by Health Canada and CIC officials, by portraying persons living with HIV/AIDS as vectors of disease and potential dangers to Canadians, have added to the climate of stigma and discrimination that persons living with HIV/AIDS already face in Canada. In addition, they have heavily stigmatized all immigrants, and created the misleading public impression that HIV/AIDS is a problem that does not concern all Canadians, but is an imported problem and one that can be addressed by exclusion, rather than sound prevention efforts and compassion.

Persons with HIV/AIDS do not constitute a threat to public health and safety. I demand that Health Canada and Citizenship and Immigration Canada maintain their old policy to that extent, and refrain from making HIV testing mandatory for prospective immigrants. In addition, I demand that people with HIV/AIDS not be automatically excluded from immigrating on grounds of excessive cost to health and social services. Rather, the individual circumstances of each case must be taken into account.

I trust that you will reconsider, in light of the above, any proposals to require mandatory testing of all prospective immigrants, and the blanket exclusion of people solely on the basis of their HIV status.

Sincerely,

[your name and postal address]

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.

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)

THE CANADIAN HIV/AIDS LEGAL NETWORK

Canadian HIV/AIDS Legal Network - Réseau juridique canadien VIH/sida
484, rue McGill Street, Suite 400,
Montréal (Québec) Canada H2Y 2H2
Telephone/Téléphone : 514-397-6828 ext. 222;
Fax/Télécopieur : 514-397-8570
http://www.aidslaw.ca

The Canadian HIV/AIDS Legal Network is a partner organization of the AIDS Law Project in South Africa -- Le Réseau juridique canadien VIH/sida est un partenaire actif du AIDS Law Project de l'Afrique du Sud.