Law Times

PAGE 8 An online resource 1.800.263.3269 Focus On IMMIGRATION LAW Loosening immigration rules for people with HIV U.S. drops ban, Canada continues to hone its approach as law develops BY ROBERT TODD Law Times informed policy barring anyone with HIV from entering the country. "To me, it's just appalling that it E went on as long as it did," says John Norquay, an immigration lawyer at To- ronto's HIV & AIDS Legal Clinic. "It's pretty shocking." Meanwhile, Canada's immigration bar is wrestling with changes to the country's own approach to applicants with HIV. Th e United States offi cially lifted its ban on the virus that causes AIDS on Jan. 4 by removing it from a list of communicable diseases of public health signifi cance. Th e move ends a ban that had lasted 22 years after its introduction in 1987, when a lack of understand- ing of HIV caused widespread fears and prompted the U.S. Department of Health and Human Services to include it among the list of communicable diseases that disqualify foreigners from entering the country. Congress blocked the de- partment's attempts to reverse the deci- sion in 1991. Th e ban forced foreigners applying to become U.S. residents to take a test for AIDS. Tourists and short-term visitors could seek a waiver but many viewed the process as too complicated and declined to pursue it. Waivers were also available for married persons in heterosexual mar- riages but not for gay couples. U.S. President Barack Obama an- nounced plans for the policy change last October. "It's a step that will encourage peo- ple to get tested and get treatment, it's a step that will keep families together, xperts are applauding the United States for lifting what was con- sidered an antiquated and mis- Canada's approach to the entry of for- eigners with health problems. "It's not just enough to look at the disease and stop people from entering based on the classifi cation of the dis- ease," says Battista. "Th e Hilewitz deci- sion says you have to look at the indi- vidual situation." Before the decision, people with HIV 'You can see how the law is evolving from a cookie-cutter approach to diseases and health conditions,' says Michael Battista. and it's a step that will save lives," Th e Canadian Press reported Obama as re- marking. "If we want to be the global leader in combatting HIV/AIDS, we need to act like it." Norquay says the U.S ban had a seri- ous impact on many of his clients. He notes the clinic handled at least one case each month involving issues arising when Canadians with HIV attempted to enter the United States. Th ey ranged from individuals being turned away at the border when attempting to drive into Buff alo, N.Y., to a man whose plans to go on a cruise vacation were ruined. But, says Norquay, fi nancial losses were not the main concern for Canadi- ans aff ected by the ban. "People focused more on the humili- ation and treatment as a second-class citizen," he says. "Th ese border guards are trained, I think, to be really aggressive, and so once you get into an actual enforcement situation, that only gets worse." While the U.S. move signals greater understanding in that country of the pub- lic health signifi cance of the disease, a long list of other nations continue to bar trav- ellers with HIV, including China, Cuba, Egypt, North Korea, Israel, New Zealand, Poland, Singapore, Iraq, and Russia. Michael Battista, an immigration law practitioner and partner at Jordan Battista LLP in Toronto, points out that Canada has its own restrictions on in- dividuals coming to the country with HIV. But unlike the old U.S. policy, it's aimed at keeping a lid on health-care costs. Countries such as Britain and Australia take a similar approach. Battista points to the Supreme Court of Canada's 2005 case in Hile- witz v. Canada (Minister of Citizenship and Immigration) as a turning point in applying for permanent residency were often denied without getting a chance to show that their health-care needs wouldn't impose an undue strain on the health-care system. It didn't matter, for example, if the person had a plan to off - set the cost of medication. But in Hilewitz, a case involving a mentally challenged child, the top court considered a family's plan to pay the cost of the health services a child might require. Lower courts said they couldn't consider such a plan, but the Supreme Court ruled it should be a factor. Courts and the immigration system at large are currently doing their best to in- terpret the decision and determine how far the notion of allowing applicants to create their own plans to pay for health costs should go, says Battista. He's work- ing on a case involving a client who suc- cessfully argued at the Federal Court that his employer's health-benefi ts plan would cover his HIV medication. Th e government is appealing that ruling. "You can see how the law is evolv- ing from a cookie-cutter approach to diseases and health conditions, where people are excluded solely based on those health conditions, to a more nu- anced situation where people are be- ing given an opportunity to persuade decision-makers that they have a plan in place to off set those costs," says Bat- tista. "It's a very exciting time in terms of the development of Canada's immi- gration law." 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