Crossing Boundaries: Travel,
Immigration, Human Rights and AIDS
Margaret A. Somerville and Sarah Wilson*
Humans create and use multiple boundaries for many
varied and complex purposes. The concept and physical reality
of the nation state to which non-nationals have no right but only
a privilege of entry, has been an important boundary in defining
many twentieth century societies. Other such boundaries –
likewise, created through a “them” and “us” approach –
are
those between the stranger and the friend, the moral and the
immoral person, and the diseased and the healthy. All of these
boundaries are cumulatively operative in the context of the ex-
clusion of visitors, immigrants or refugees on the basis of medi-
cal inadmissibility.
In this article, the authors explore, first, the role that dis-
ease plays in society, in particular, as a reason, means or excuse
for the stigmatization of others, and how the refusal of entry to
a country on the grounds of medical inadmissibility reflects a
broad range of societal attitudes, values, beliefs, prejudices and
aims often unrelated to health concerns. The authors then ex-
amine medical inadmissibility in travel and immigration law in
the United States and Canada, using HIV infection and AIDS as
the particular example. Finally, they reconsider the theories un-
derlying present immigration law and argue that the notion of
tie absolute sovereignty of the state with respect to its right to
exclude aliens should be modified in view of both historical and
present realities.
It is proposed that there should be a presumption that all
visitors to a country should have a right of entry, unless the
state can show justification for excluding them; that while the
state may exclude immigrants, including on medical grounds,
such exclusion should comply with principles of human rights
and justice; and that refugees should never be excluded on the
grounds of medical inadmissibility.
Nous cr&ns et utilisons de multiples fronti~res pour des
usages varids et complexes. Le concept d’tat-nation et son ap-
plication selon laquelle les non-nationaux n’ont pas de droit
mais plutt un privilege d’entrde a servi d’importante frontire
pour dlfinir plusicurs soci6t
au vingtime sikcle. D’autres
fronti~res, similairement crtes selon une approche d’auto-
identification, sont celles entre I’ami et l’tranger, le moral et
l’immoral, et la personne en sant6 et le malade. Toutes ces
frontieres s’appliquent cumulativement dans
le contexte
d’exclusion des visiteurs, des immigrants et des r6fugifs pour
cause d’inadmissibilitt n’ dicale.
Dans et article, les auteurs explorent d’abord le r6lejou6
par la maladie dans la socidt6 -en particulier comme raison,
moyen ou excuse de stigmatisation d’autrui –
et tentent en-
suite de voir comment le refus d’entre reflte, sur le plan so-
cial, un 6ventail d’attitudes, de valeurs, de croyances, de prju-
g6s et d’objectifs bien souvent sans rapport aux objectifs m~di-
caux. En prenant comme exemple l’infection du VIH et le
SIDA, les auteurs examinent l’inadmissibilit6 ndicale dans les
lois d’immigration et de voyage aux Itats-Unis et an Canada.
Enfin, les auteurs reconsid~ent les thories qui sous-tendent
actuellement les lois d’immigration et, Nr Is lumire des r~alit~s
historiques et prdaentes, proposent de revoir la notion de souve-
rainet6 de I’bat et du droit d’exclusion des 6trangers.
Les auteurs suggrent qu’un droit d’entre devrait Etre
pr&um6 pour tous les visiteurs A. moins de preuve d’unejustifi-
cation pour I’exclusion, et que, bien que l’1at ait le droit
d’exclure les immigrants (notamment pour des questions rddi-
cales), une telle exclusion devrait se conformer aux droits de la
personne et aux principes de justice. Les nifugids, pour leur
part,
cause
d’inadmissibilit6 mddicale.
etre exclus pour
ne devraient
jamais
. Margaret A. Somerville, AM, FRSC, A.u.A.(pharm), LL.B. (Hons I), D.C.L., LL.D (Honoris
causa) Gale Professor of Law; Professor, Faculty of Medicine, McGill University, McGill Centre for
Medicine, Ethics and Law. Sarah Wilson, B.A. (Hons.) (Oxon, 1989); LL.B. (McGill, 1993), LL.M.
(McGill, 1996). Sarah is currently working on a Ph.D. at Edinburgh University on the use of social
services by HIV-positive mothers. The authors wish to thank Julie L. Hobbs, B.BA, JD for invaluable
research assistance, Ramona Rothschild, BA, MLIS and Tamara Rader, BA, MLIS, for assistance
with references, Professor Audrey Macklin of the Faculty of Law, Dalhousie University, Halifax, and
several anonymous reviewers for the McGill Law Journal for commenting on an earlier draft of this
article, Sarah Maywood of the McGill Law Journal for exceptional editorial assistance and, in par-
ticular, the friends of the late Kenneth Gobeille for their financial support.
McGill Law Joumal 1998
Revue de droit de McGill
To be cited as: (1998) 43 McGill L.J. 781
Mode de r6ffrence : (1998) 43 R.D. McGill 781
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
Introduction and Overview
1. Society and Disease
A. The Role Disease Plays in Society
B. Stigmatization as a Response to Epidemic Disease
C. Economic Influences on Policy Responses to Disease
D. Lessons from History: Exclusion from the Community of People
Suspected of Being Infected
E. Exclusion on the Basis of Genetics
F The Relationship Between Societal Responses to Disease and the
Development of Medical Inadmissibility Criteria
II. The Legal Context of Exclusion
on Grounds of Medical
Inadmissibility
A. Medical Inadmissibility in Travel and Immigration Law
1. United States of America
2. Canada
a. Visitors
b. Applicants for Permanent Residence
c. Refugees
a. Visitors
b. Applicants for Permanent Residence
c. Refugees
B. The Legal Structure
1. Theories Underlying Present Immigration Law
a. The Concepts of Sovereignty and the Right to Exclude all
Aliens
b. The Notion of Limited Sovereignty
c. The Contingency of Notions of Sovereignty of the State’s Right
to Exclude Aliens on the Basis of Social and Economic
Circumstances
d. Limits on the Notion of Sovereignty Indicated by Actual Law
e. Conclusions with Regard to the Notion of Sovereignty and the
and Practice
Right to Exclude Aliens
2. Grounds for Exclusion
a. Exclusion of HIV-Infected People on Public Health Grounds:
The American Approach
b. Exclusion of HIV-Infected People on
the Grounds of an
Excessive Burden on Health and Social Services: The Canadian
Approach
Conclusion
Afterword
1998] M.A. SOMERVILLE AND S. WILSON- IMMIGRATION AND HUMAN RIGHTS
783
Dedication
This article is dedicated to the memory of Kenneth Gobeille, who
was tragically killed in a bicycle accident in Maine on 31 August
1991. Donations were given in honour of his memory by his family
and friends, and these funded research for this article, a project
which those closest to Ken felt he would have been interested to
support.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
WALLS
Man is
a great wall builder
The Berlin Wall
The Wailing Wall of Jerusalem
But the wall
most impregnable
Has a moat
flowing with fright
around his heart
A wall without windows
for the spirit to breeze through
A wall
without a door
for love to walk in.
OSWALD MITSHALI,
Soweto poet
Introduction and Overview
The law of entry restrictions’ involves the creation of boundaries by people of one
nation for the exclusion of people of a different nation. Such restrictions may be neces-
sary for the economic protection and welfare of a state. However, they also reflect social
and psychological boundaries which we as individuals and societies place between our-
selves and the “outside”. The poem, Walls, provides an insight in this respect; it suggests
that one basis for exclusionary responses, such as entry restrictions, is that of fear. In the
case of entry restrictions related to Human Immunodeficiency Virus (HIV), the fear
may not only be of HIV-related disease itself and of being confronted with an image of
our own mortality, but also of possible losses and harms in a wide range of activities,
values and privileges which can be associated with HIV infection and Acquired Im-
mune Deficiency Syndrome (AIDS).
This article will describe the process by which powerful conscious and unconscious
fears, such as the fear of a perceived threat to a well-ordered society, can be triggered by
being confronted with disease in the context of migration.
It will also analyze how
these fears can be translated into restrictive measures, often affecting or being directed
‘This term is used to include restrictions relating to the entry of visitors as well as those who wish to
reside permanently in a country of which they are not nationals (e.g. prospective immigrants). The
term “immigration” is not appropriate with respect to all of these different groups, since visitors cannot
be regarded as immigrants within the normal meaning of the word. Refugees should also be distin-
guished on the basis of special human rights considerations. In this article the word “migration” will
thus be used as an inclusive term. Furthermore, it is suggested that there is a fundamental difference in
nature between temporary presence and permanent residence in a foreign country. The formulation of
entry restrictions should therefore reflect this distinction clearly.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
785
against the least powerful members of society One function of entry restrictions may
therefore be to provide protection against these deep fears, by providing an appearance
of protection against the people on whom the fears are projected. In fact, these deep
fears may be more important than the actual risk to public health as the real reason for
implementing entry restrictions ostensibly aimed at the protection of public health.
I The scope of the issues which need to be considered in relation to entry restrictions
is extremely broad. We consider these in the context of medical inadmissibility. This ex-
amination will be divided into two main sections: first, we examine, in general, the
complex interaction between society and its perception – whether theoretical, mythi-
cal, fabricated or real – of the threat or presence of disease. In particular, we examine
the influence of social and economic factors on the adoption of public health measures.
The social construction of disease plays a significant role in shaping medical and public
health responses to it? Second, we undertake an analysis of the use of medical inadmis-
sibility criteria in migration law. For example, in the United States, the exclusion of HIV
infected immigrants and visitors has been maintained on public health grounds, despite
the recommendation of the Department of Health and Human Services that the legal
provisions to this effect should be repealed.!
The second major section of this article focuses on the origins, theory and functions
of the law governing migration because we believe that medical inadmissibility criteria
should be examined within the wider context of migration laws. Within this context
medical inadmissibility criteria are conceptualized by policy-makers around theories
other than just those of protection of public health. Other factors such as the economic
impact of allowing the entry for permanent residence of sick people may also be rele-
vant, or even dominant, particularly where a comprehensive public system of health
care exists, as for example in Canada.
The discussion focuses in particular on the concept which underlies much of mod-
em migration law, namely the right of a state to exclude all non-resident aliens. This
concept is, in turn, based on a certain absolutist notion of sovereignty of the state with
respect to its territory. We argue that the right to exclude all aliens is not an inherent
right of states, but a concept influenced, for example in its formulation, by the xenopho-
bia of the early years of this century as well as by the theory of Legal Positivism.
At present an increasingly important subtext to migration legislation in many West-
em countries has been the rising social and political concern relating to the increasing
numbers of people, often from developing nations, seeking refugee or immigrant status
or moving illegally into these countries. This migration has been prompted by political
repression, huge economic disparities between North and South, and changes in the
2 These groups are sometimes physically present in a society, but not perceived as full members of it
(e.g. illegal immigrants). This perception has often facilitated the imposition of harsh, restrictive meas-
ures.
See A.M. Brandt, “AIDS and Metaphor: Toward the Social Meaning of Epidemic Disease” (1988)
55 Social Research 413 at 415.
‘ See infra notes 75-82 and accompanying text.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
world’s political situation since the end of the Cold War. International travel is increas-
ingly possible and “[h]undreds of millions of persons cross international borders each
year, by boat, air, rail, motor vehicle and foot “‘ In 1983, 95,000 people sought asylum
in OECD countries, which increased to 700,000 by 1991 –
an increase of over 600 per
cent.’ Of the OECD countries, Germany has been by far the largest recipient where
438,000 refugee claimants were registered in 1992.! In 1991,
the figure was only
256,000.’ These movements, unprecedented in size, have been portrayed emotively as
an invasion in many Western countries This has prompted political responses to reduce
the numbers of refugee claimants and immigrants in general. These include the so-
called “Fortress Europe” policy which appears to have been adopted by the European
Community. There have also been legislative changes in several countries including
France,” Canada” and Germany.” In the latter case, the constitution was altered to allow
for the reduction of the number of asylum claims.
United States, National Commission on Acquired Immune Deficiency Syndrome, Background Pa-
per on AIDS and hmnigration: An Overview of United States Policy (Washington, D.C.: National
Commission on AIDS, 1989) at n. 24 [hereinafter Overview of U.S. Policy].
6 See Employment and Immigration Canada, Managing hmmigration: A Framework for the 1990s
(Ottawa: Employment and Immigration Canada, 1992) at 4.
“Europe Tries to Shut the Floodgates” The Financial Thmes (3 June 1993) 3.
‘Germany has taken over I million asylum seekers over the past four years, ibid.
For example, in the words of former French President, Valry Giscard d’Estaing, “[lie type de pro-
bltme auquel nous aurons A faire face se drplace de celui de l’immigration vers celui de l’invasion” Le
Figaro-Magazine (21 September 1991) in Le Nouvel Observateur (24 June 1993) at 87.
” In France, immigration is regulated under an order made on 2 November 1945. Its provisions on
refugees and family reunion were amended on 2 June 1993. They are now considerably more strin-
gent. Charles Pasqua, the Minister who introduced the amendments declared that the government’s
objective was “une immigration z6ro” See “Immigration: le gouvemement serre ]a vis: Les disposi-
tions entendent r&luire le flux migratoire et favoriser les expulsions” Le Figaro (3 June 1993) I1. The
widely-used expression “flux migratoire” would seem to indicate an attitude that is disfavourable to-
wards migration.
” See An Act to anend the hmnigration Act and other Acts in consequence thereof, S.C. 1992, c. 49.
Canada also decreased its refugee quota for 1993. See J. Bryden, “Refugee Quotas Cut: Boost for
Business Immigration Shows Lack of Compassion: Critics” The [Montreal] Gazette (5 December
1992) A11.
” See “Germany Revokes Right to Asylum – Parliament Proposes New Law that Will Turn Away
or Return Most Refugees” The Globe and Mail (27 May 1993) A7. This altered the constitution which,
until 26 May 1993, provided for a guaranteed right of all foreigners to seek asylum in Germany.
Grundgesetz (23 May 1949), see “Germany”, ed. by G.H. Flanz in A.P. Blaustein & G.H. Flanz, eds.,
Constitutions of the Countries of the World, vol. 7 (New York: Oceana, 1994) Arts. 16a(l), 19(4). New
regulations including a “safe country” rule were introduced. This is likely to be contested since adher-
ence to a list of “safe” countries eliminates consideration of the individual circumstances of each appli-
cant who may, for example, be a member of a persecuted minority. Such is the case of East European
gypsies who may well be facing persecution, but whose countries – Romania, Bulgaria and the Czech
Republic –
have been deemed “safe”. See “Germany’s Refugee Dilemma” The Globe and Mail (31
May 1993) A16. Switzerland and Belgium have also introduced lists of “safe” countries. See G.S.
Goodwin-Gill, “Safe Country? Says Who?” (1992) 89 Refugees 37.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
787
In short, it would seem that the ancient right of asylum now codified to some extent
in the 1951 UN Convention Relating to the Status of Refugees’3 is being diminished by
Western governments. But unless a cooperative approach is taken to the resolution of
the underlying problems that give rise to migration, migrants will continue to arrive in
Western countries and will stay as illegal immigrants. As recognized by the United Na-
tions, “[w]here legal channels are closed, migrants will enter by whatever means are
available to them.”” For example, it has been estimated that there are at least five million
illegal aliens in Western Europe” and at least two million in the United States.”
It should also be kept in mind that the vast majority of migrants move between or
are internally displaced within developing countries, with little hope of reaching the
richer countries. The figure of 700,000 applicants in OECD countries seems relatively
small when one considers that “[r]efugees in 1991 totalled approximately 17 million, 87
per cent of them in developing countries” The United Nations Report State of World
Population 1993 also notes the greater generosity of developing countries, as compared
with developed ones, in accepting large numbers of refugees.”
Keeping in mind this wider context of increasing intolerance towards migrants, we
examine HIV-related entry restrictions in the United States and Canada. These countries
have been chosen because they are countries “of immigration”, and pride themselves on
the human rights protections entrenched in their constitutions. It is our purpose to ex-
amine whether their policies in relation to HIV-related entry restrictions and immigra-
tion law in general match up to their stated human rights standards and, if not, how they
should be re-formulated with these in mind. It is also suggested that the treatment of
strangers provides an excellent indication of the fundamental values of a society and the
extent to which it is willing to apply such values in general, and therefore can legiti-
mately promote them globally. Concepts such as the “global community” are now
” Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150, Can. T.S. 1969 No.
6 [hereinafter Refigee Convention].
” United Nations Population Fund, The State of World Population 1993: The hdividual and the
World: Population, Migration and Development in the 1990s (New York: UNFPA, 1993) at 22 [herein-
after The State of World Population].
that illegal
” B. Newman, “Fortress Europe” The [Montreal] Gazette (10 July 1993) B1. In France it is recog-
nised
immigrants have created “une vritable culture souterraine” (F. Leclerq,
“L’impossible expulsion” L’Express (13 December 1991) 24). The number of illegal immigrants is
likely to increase, particularly in Western Europe given the proximity of the economically and politi-
cally troubled countries of Eastern Europe and Northern Africa.
” “Immigrants: The Target of U.S. Fears” The Economist, reprinted in The Globe and Mail (26 July
1993) A13.
“7 The State of World Population, supra note 14 at 7. The report also states that “[a] further 3.5 to 4
million were thought to be in ‘refugee-like situations: though estimates are probably extremely con-
servative, and an estimated 23 million people internally displaced” (ibid. at iii).
” Pakistan and Iran, for example, have sheltered over three million refugees each during the 1980s.
Regional conventions in Africa and the Americas both have adopted broader definitions of the term
“refugee” than that of the United Nations Convention (see ibid. at 32-33).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
common place; this article suggests that if these concepts are not to ring hollow, greater
attention must be paid to their substantive content.
I. Society and Disease
A. The Role Disease Plays in Society
Disease has cultural as well as biological and medical aspects. We need to take a
wider and deeper perspective, because “[d]isease is simply too significant, too basic an
aspect of human existence to presume that we could respond in fully rational or neutral
ways.'”‘9 Brandt says, “so complex a phenomenon as disease cannot be understood out-
side the culture in which it occurs.””0 There is an interaction between the biological real-
ity of disease and culture:
Throughout human history, epidemic disease has constituted a natural experi-
ment in how societies respond to disability, dependence, fear and death. In this
sense, the manner in which a society responds reveals its most fundamental
cultural, social, and moral values. Disease is not merely a biological phenome-
non; it is shaped by powerful behavioural, social and political forces. Social val-
ues affect both the way we come to see and understand a particular disease and
the interventions we undertake. In this view, disease is “socially constructed ” ‘2
In consequence, responses to disease are often moulded by the preoccupations of a par-
ticular society, especially if those preoccupations relate to matters that the society re-
gards as critically important.
Brandt identifies two such preoccupations which helped to determine the response
of American society to sexually transmitted disease in the first two decades of the twen-
tieth century: the search for technical and scientific answers to social problems and the
search for a set of unified moral ideals.2 The former is exemplified by the reporting,
screening, testing and isolation requirements introduced in an attempt to control vene-
real disease. The latter may be seen in public health education campaigns which at-
tempted to instil a fear of sex into the target audience as a means of reinforcing a moral
code that emphasized the importance of reserving sexual activity until marriage.
The importance of social concems in moulding public health responses is clear. Dif-
ficulties can arise, however, if attaining one social or public health aim is in conflict with
attaining another and both are considered to be essential. For instance, if safe-sex edu-
cation is seen as encouraging extra-marital sexual activity (which is regarded as unde-
sirable), but as necessary to protect the health of persons, there is a conflict. The issue
then becomes a matter of priorities: Should the protection of health or upholding moral
‘9 Brandt, supra note 3 at 416.
20 Ibid. at 417.
“Ibid. at 414-15.
22 See ibid.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
789
rules seen as fundamental to the existence of a moral society take precedence? Brandt
also observes that:
[Vienereal disease became a metaphor for the anxieties of this time, reflecting
deep social and cultural values about sexuality, contagion and social organiza-
tion. But these metaphors are not simply innocuous linguistic constructions.
They have powerful sociopolitical implications, many of which have been re-
markably persistent during the twentieth century.’
A powerful illustration of the social and political implications of such meanings of dis-
ease is the way disease may be used to define and to re-emphasize social boundaries.!4
Disease and blame for its spread may be assigned to certain already stigmatized and
vulnerable groups –
for example, to the poor or prostitutes. HIV infection and AIDS,
in particular, have been used by some persons to reinforce and act out their prior disap-
proval of homosexuality and to seek the agreement of others to this stance.
We may therefore consciously or unconsciously elicit and exploit the effects of at-
taching meanings and moral judgments to a particular disease for a variety of purposes.
We may also do the same in failing to detach meaning or moral judgments from a cer-
tain disease. The nature of the purposes we seek to fulfil in these ways will be explored
in greater detail later in this article. It is important to emphasize that society’s response
to disease is often guided by non-objective considerations. These considerations often
override any concern for those affected. As a result, many legal and policy responses to
disease are shaped primarily by factors other than medical or economic considerations.
To illustrate further the social and cultural meanings of disease and their influence on
legal, medical and political responses to disease, we examine these factors in the context
of examples from some previous epidemics: leprosy, the Black Death, cholera and
syphilis. Experiences reported in the context of those epidemics are compared to present
day responses to HIV infection and AIDS.
B. Stigmatization as a Response to Epidemic Diseases
An examination of the history of “public health” responses to “dread” diseases
shows that a common reaction is the stigmatization of those infected and the justifica-
tion of such stigmatization on moral grounds.’
Leprosy, for example, was regarded as a punishment for sin. Since it was associated
with sexual promiscuity, “leprosy became the metaphor for heresy, moral turpitude, and
unnatural and excessive lust.'”” Syphilis also was associated with debauchery and moral
punishment.
2′ Ibid. at 422-23.
24 See ibid. at 418.
See N. Gilmore & M.A. Somerville, “Stigmatization, Scapegoating and Discrimination in Sexually
Transmitted Diseases: Overcoming Them and Us” (1994) 39 Social Science and Medicine 1339.
” D.F. Musto, “Quarantine and the Problem of AIDS” (1986) 64 Milbank Q. 97 at 101.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 43
The connection of HIV infection and AIDS with several taboo subjects such as
sexuality, homosexuality and injection drug use has likewise facilitated the moral col-
ouring of the HIV epidemic by some.” For many years, homosexuality was viewed as a
“psychopathic disease” The immigration law in the 1960s and 1970s allowed the
United States to exclude those immigrants whom it determined to be homosexual. In the
1980s, the Immigration and Naturalization Service (INS) continued to exclude indi-
viduals based on homosexuality, but the courts required a medical certificate for exclu-
sion on this basis. 8
A tug-of-war developed between the Judiciary and Congress concerning the juris-
diction for the exclusion of persons as immigrants on the basis of their homosexuality.
The Judiciary stated that the power of Congress to regulate immigration was “plenary,”
“almost exclusive” and subject to “minimal judicial review.” ‘ Even with this severely
limited power to review, there is, however, some evidence that the Judiciary will attempt
to control exclusion provisions by strict interpretation of the statutory and procedural
requirements.”0 This is evident in Hill v. United States Immigration & Naturalization
Service, where the Court recognized Congress’s right to exclude homosexuals, but held
that, according to the statute, a medical certificate from a medical officer stating that the
alien suffered from a mental disease was required.” The Surgeon General of the United
States had issued a declaration that no medical officer could issue a certificate stating
that a person had a mental disease just because the person was homosexual.” The Court
specifically recognized that this would indirectly prevent the exclusion of aliens only for
their homosexuality. Not all circuit courts, however, held the same view. In Longstaff,
which was heard around the same time as Hill, the Court held that Congress intended
the term “psychopathic personality” to include homosexuals, and a medical certificate
diagnosing a mental disease was not needed.’ All that was needed to exclude aliens on
the basis of homosexuality was an admission of homosexuality.” It seems that the exclu-
sion of immigrants based on homosexuality has not been directly addressed by the
courts since the 1980s. It is interesting to note the coincidental timing of the pressure
27 Brandt, supra note 3 at 429, relates the remarks of President Reagan’s former speech writer Patrick
they have declared war upon Nature, and
Buchanan, who declared that: ‘The poor homosexuals –
now Nature is exacting an awful retribution” (New York Post (24 May 1983)).
“‘ See Hill v. United States hnIigration and Naturalization Service, 714 F2d 1470 (9th Cir. 1983),
later proceeding 775 E2d 1037 (9th Cir. 1985) [hereinafter Hill]; Lesbian/Gay Freedom Day Commit-
tee, Inc. v. United States Inmnigration and Naturalization Service, 541 R Supp. 569 (Cal. 1982), aff’d
714 E2d 1470 (9th Cir. 1983), later proceeding, 775 F.2d 1037 (9th Cir. 1985). Compare with hI re
Longstaff, 716 F.2d 1439 (5th Cir. 1983) [hereinafter Longstaft].
‘ G. Pendleton, “The United States Exclusion of HIV-Positive Aliens: Realities and Illusions”
(1995) 18 Suffolk Transnat’l L. J. 269 at 288.
See cases cited at supra note 28.
‘ See Hill, supra note 28 at 1480. See also Pendleton, supra note 29 at 293.
32See Hill, ibid. at 1472.
‘3 See ibid. at 1481.
‘ See Longstaff, supra note 28. See also Pendleton, supra note 29 at 293.
“See Longstaff, ibid.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
791
from the Judiciary to prevent exclusion on the grounds of homosexuality and the moves
made by Congress to pass legislation excluding immigrants who were HIV positive, a
condition strongly believed to be connected with homosexuality in itself, in the early
years of the AIDS epidemic’ In reviewing the history of the “homosexual exclusion”
and the development of the “HIV exclusion”, it appears that the HIV exclusion may be a
“surrogate test” for excluding homosexuals.
While many people infected with dread diseases have been ostracized, distinctions
are drawn between some infected persons and other infected persons. These distinctions
are sometimes made to exempt from disapproval those who were not infected through
behaviour perceived by society to be immoral. This distinction is necessary to preserve
the symbolic and moral messages associated with the transmission of the disease. The
moral meaning of infection, in effect, would be lost if distinctions between “guilty” and
“innocent” victims were not made.” For example, hemophiliacs could be described as
“innocent bystanders”‘
in the path of a new disease. It can then be implied, however,
that other persons with HIV are guilty in having acquired the infection. HrV infection
thus can be seen as a punishment of homosexuals for immoral conduct.
C. Economic Influences on Policy Responses to Disease
Legal and medical responses to diseases, and the policies that reflect and implement
these responses, have also been shaped by economic factors. The following examples
illustrate how the decision whether to implement exclusionary measures may be more
influenced by economic considerations than by public health analysis.
First, during the cholera epidemics of the late nineteenth century in several North
American cities, scientific debate was greatly influenced by commercial needs. There
were at least two schools of scientific opinion that attempted to explain the transmission
of disease. Those who believed that disease was transmitted by animated particles, in-
visible to the naked eye (the theory of contagion vitum) were in opposition to those who
believed that infection resulted from the inhalation of putrefied air or miasma. The latter
theory was adopted by most of the business community since according to this explana-
tion there was no need for quarantine and resulting inaccessibility to trading partners
and delays. Therefore, this theory “served the practical purposes … of businessmen in-
terested in unimpeded free trade’ 39
‘6 The actions taken by the U.S. Congress and the Executive Branch are discussed below at Section
HA. 1.
” It is interesting, however, that those deemed to be “innocent” victims are not exempt from harmful
reactions to them based on fear and stigmatisation in everyday life. For example, infected hemophiliac
children in schools, on several occasions, have been the object of protests by the parents of other chil-
dren.
‘ See Brandt, supra note 3 at 430.
“J. Goudsblom, “Public Health and the Civilizing Process” (1986) 64 Milbank Q. 161 at 177.
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Second, in times of plague, information regarding contagion was often suppressed
because it had disastrous consequences for trade and employment. Even today, several
countries deny that they have any HIV-infected nationals, or deliberately underestimate
their numbers in order not to discourage investment, trade or tourism. Entry restrictions
may also reflect such concerns. For instance, Cuba tests its own nationals and all per-
manent residents and long-term visitors for HIV infection,” but excludes short-term
visitors staying less than three months (e.g. tourists) from this requirement in an effort to
protect much needed tourist revenue.
D. Lessons from History: Exclusion from the Community of People
Suspected of Being Infected
In order to understand the role of disease –
in a
society and the treatment of those infected, the contemporaneous social, cultural and
economic context must be considered. This is equally true of society’s response to HIV
infection and AIDS and its treatment of those infected.
in particular infectious disease –
Historical analysis shows that several dimensions often underlie decisions to ex-
clude infected persons from a community. First, these decisions may be regarded on the
basis of available medical knowledge, and either wholly or in part as simply essential
and sensible measures to control disease. Few would argue with the isolation of people
infected with active tuberculosis as a necessary precaution. Likewise, in times of plague,
the implementation of quarantine and the requirement that all incoming travellers carry
health certificates could be characterized as “organized attempts not just to ostracize the
victims but indeed to combat the disease?” The latter was true because the plague could
justifiably be seen as “something that came from the outside” Moreover, at that time,
the principal theory of transmission was that of contagion vitum or the transmission of
disease by animated particles invisible to the naked eye. Consequently, even though the
forty-day quarantine period adopted was arbitrary in terms of its length and there was
no precise knowledge of the means of transmission of the infection, these measures
were to some extent rationally related to the control of the disease.
Second, measures of exclusion and confinement have also been partly or principally
fuelled by anxieties at a societal level. Demands of the public for protection from epi-
demics occasionally have “overwhelmed the medical experts’ assurances that the dis-
ease was not contagious and that quarantine was an expensive and useless instrument
with which to combat cholera?'”
Third, measures of exclusion can serve psychological and symbolic functions for
individuals and societies. Musto has described the “psychology of quarantine” as the
‘0 See M. Duckett & A.J. Orkin, “AIDS-related Migration and Travel Policies and Restrictions: A
Global Survey” (1989) 3 (Supp. 1) AIDS: A Year in Review S231 at S236-37.
4’ Goudsblom, supra note 39 at 169.
41 Ibid. at 168.
” Musto, supra note 26 at 105.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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marking of a boundary with a “deep[ly] emotional and broad[ly] aggressive character”
between persons who are the “contaminating” and the “uncontaminated.”‘ Another ex-
ample of how policies of exclusion and confinement may be introduced as a result of
anxieties and prejudice at the societal level is the quarantine of prostitutes during the
First World War on the presumption that they had venereal disease. Based only on a pre-
sumption, this highly intrusive intervention represented an unjustified use of quarantine
powers against a stigmatized group in society, but it was nonetheless upheld by the
courts. The courts believed that if a woman were a prostitute it was reasonably probable
that she was infected.” Public health officials were not required to prove whether an in-
dividual prostitute was in fact infected. Nor were they required to show reasonable
grounds for belief of infection, other than the fact that she was a prostitute.
Fourth, the continued influence and use of concepts and approaches of exclusion
and confinement (including quarantine), despite increasing medical knowledge over
time that such measures were unnecessary with respect to certain diseases, deserves in-
vestigation –
in particular because it has parallels in the present. As noted, the exclu-
sion of people with HIV/AIDS within a community from that community, by means of
quarantine or isolation, has not (barring exceptional circumstances) been officially en-
dorsed in many countries. Neither the United States nor Canada has implemented such
measures. However, in many countries, including the United States, the exclusion of in-
fected foreigners has been officially condoned. This exclusion has taken the form of re-
strictions on immigration on the basis of medical inadmissibility. This difference in
treatment of residents and foreigners may be explained by several factors, some of
which are obvious. For instance, consideration of the effects of permanent immigration
on the receiving state is a legitimate factor in the case of prospective immigrants, and
from this perspective, some restrictions on the basis of medical inadmissibility are ac-
ceptable. Another difference arises because, in recent times, there has been great em-
phasis domestically on individual rights, including rights in relation to health care and in
particular rights against discrimination. In the context of HIV infection and AIDS,
claims to these rights have often been fuelled by the strong organization of lobbyists
against coercive and restrictive measures. However, in practice and in law, human rights
protections are often applied less stringently where foreigners not physically present are
concerned. This reflects both general disidentification” from foreigners and their lack of
influence over the political process.
E. Exclusion on the Basis of Genetics
According to Musto, there can be eugenic reasons underlying the exclusion of cer-
tain persons as immigrants. “Creating boundaries between groups to prevent entry of
“Ibid. at98.
“See W.E. Parmet, “Aids and Quarantine: The Revival of an Archaic Doctrine” (1985) 14 Hofstra L.
Rev. 53 at 67 [hereinafter “AIDS and Quarantine”].
‘ See M.A. Somerville & A. Orkin, “Human Rights, Discrimination and AIDS: Concepts and Is-
sues” (1989) 3 (Supp. 1) AIDS: A Year in Review S283 at S285.
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undesirable biological characteristics, an essential element in the concept of quarantine,
can be seen in the philosophy underlying some of the immigration laws of the United
States”” Certainly, exclusion of potential immigrants on the basis of IQ tests, as has oc-
curred in the United States,” is a clear example of such an approach.
The connection of immigration, genetics and eugenics raises some complex and
highly sensitive issues. For instance, is the rejection of potential immigrants on health
grounds just another manifestation of rejection on eugenic grounds? Did immigration
restrictions on health grounds and the concepts and practice of eugenics arise at the
same time? Could it be that immigration was seen as preventing “the undesirable” from
coming in from outside, and eugenics as preventing persons characterized in this way
from reproducing inside the society? Physicians in the United States were heavily in-
volved in the international eugenics movement in the 1920s and 1930s, which culmi-
nated in the Nazi horrors.”‘ It is noteworthy that both intelligence testing and medical
examinations of potential immigrants were –
carried
out by physicians who are not likely to identify personally with the vast majority of
these people whom they assess. They are also less likely, therefore, to believe that these
potential immigrants should be admitted to the society to which the physicians belong.
In fact, McLaren states, in speaking of Canada, that there is evidence that, at least in the
first half of the twentieth century, physicians considered immigrants a threat to the
country.’
and in the latter case still are –
A discussion of genetics necessarily raises the issue of genetic testing of individu-
als, or screening of groups or populations, as part of a medical examination of prospec-
tive immigrants. The issues this raises, especially the ethical and legal issues, cannot be
explored here. But in the context of excluding persons on the basis of their HIV status, it
should be kept in mind that the acceptance of the use of tests which may be required to
screen potential immigrants for certain conditions –
may pave the way for the use of other tests in the migration context, such as genetic
testing. The analysis of past and present entry restrictions and practices indicates that
such testing might be permitted to a far greater extent in this context than in the domes-
tic one. It could be that fears raised by the advent of genetic testing would be realized to
their fullest extent in the search for the “perfect migrant” or at least the perfectly healthy
one. Paradoxically, however, the availability of such tests could mean that we might no
longer be able to regard ourselves as healthy. These tests create a situation in which we
may be forced to recognize, as Montreal’s Dr. Ken Flegel noted, that “the well are only
such as HIV antibody tests –
7 Musto, supra note 26 at 109.
” See L.J. Kamin, The Science and Politics of IQ (New York: John Wiley, 1974) at 16 [hereinafter
Science and Politics]. We are grateful to Jodi Lackman for bringing the Science and Politics, ibid., and
“Aids and Quarantine”, supra note 45, references to our attention in her paper “Are We Wise Enough?:
Eugenics, Genetics and Intelligence” (1995) [unpublished].
” See G.J. Annas & M.A. Grodin, eds., The Nazi Doctors and the Nuremberg Code (New York: Ox-
ford University Press, 1992).
-” See D. McLaren, Our Own Master Race: Eugenics in Canada 1885-1945 (Toronto: McClelland
Stewart, 1995) at 52.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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the undiagnosed sick” Would this mean that we might be less anxious to exclude those
we perceive as being unhealthy?
Finally, in considering genetics within the context of immigration, we should also
keep in mind that like other species (and indeed life on our planet as a whole), biodiver-
sity is essential to our survival. Immigration is one important way in which a greater
level of human genetic diversity than would otherwise be the case can be maintained; in
a genetically diverse population, the prevalence of deleterious genes is lower than in an
inbred one.”
F The Relationship Between Societal Responses to Disease and
the Development of Medical Inadmissibility Criteria
In this section we discuss the relationship of social factors, including the mistrust of
foreigners, to the development of immigration restrictions on the basis of medical inad-
missibility. We will also attempt to examine more closely the reasons for the importance
attached to the presence of exclusionary measures, despite knowledge that such meas-
ures are often ineffective or highly discriminatory. Therefore, we are trying to identify
the real functions served by these restrictions –
functions which are, it would seem,
valued more highly in some contexts than upholding the values of human rights in our
Canadian and American societies.
It is suggested that one of the primary reasons for the kinds of stigmatizing, irra-
tional reactions described above is a feeling of loss of control and uncertainty in the face
of incurable disease.” It may be that this feeling of lack of control is more important
than the fear of disease itself in promoting an exclusionary reaction. To regain certainty
and control, we resort to various mechanisms:
[Tlhe fear we have of our own collapse does not remain internalized. Rather we
project this fear onto the world in order to localize it and, indeed, to domesticate
it. For once we locate it, the fear of our own dissolution is removed. Then it is
not we who totter on the brink of collapse, but rather the Other.5′
This feeling of loss of control may be particularly acute in late twentieth century West-
ern societies since their citizens are unaccustomed to allowing for uncertainty in their
lives. To be in control is considered to be the “normal” state of affairs, and as such is re-
garded as a healthy state of affairs. The AIDS epidemic is therefore perceived as an
“‘ Interview by Dr. Somerville with Dr. K. Flegel, Royal Victorial Hospital, Montreal (1993).
‘2 See J.J. Nora et aL, Medical Genetics: Principles and Practice, 4th ed. (Philadelphia: Lea & Febi-
ger, 1994) and M.W. Thompson, R.R. Mclnnes & H.F. Willard, Thompson & Thompson Genetics in
Medicine, 5th ed. (Philadelphia: W.B. Saunders Company, 1991).
“See Gilmore & Somerville, supra note 25 at 1340-46.
S.L. Gilman, Disease and Representation: Images of Illness from Madness to AIDS (Ithaca, N.Y.:
Cornell University Press, 1988) at 1 quoted in S. Watney, “AIDS, Language and the Third World” in E.
Carter & S. Watney, eds., Taking Liberties (London: Serpent’s Tail, 1989) 183 at 190.
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“abnormal” or pathological situation which must be “solved” or “cured”.” This has led
to a situation where the inescapable role of politicians is as risk managers, which neces-
sarily means managing the “dangerous future … avoiding dangers before they arrive.”‘
Furthermore, the inability of researchers, thus far, to discover an effective treatments
for the prevention of HIV infection or a cure for AIDS has fractured our confidence in
the medical profession. This is of special importance in a society where faith in medi-
cine has largely replaced religious faith. In short, medicine plays both a concrete and
symbolic role in our society. Consequently, anything such as HIV infection and AIDS
that “threatens” medicine in the sense that medicine cannot deal with it, or makes it
seem impotent, is correspondingly perceived to threaten society.
A primary purpose of the construction of boundaries against infected people may
therefore be both reassurance that something can be done to control the spread of an in-
curable disease and the protection of society against it. Consequently, the fact that
boundaries, such as entry restrictions, are ineffective in practice can be less important
than their symbolic functions –
including such restrictions operating as a mechanism
to overcome fear.
The exclusion of infected people may serve a further function on a societal level in
pluralistic Western societies, namely, that of an “isolation ritual”.” Such societies, in the
absence of a strong sense of religion or cultural values common to all or the majority of
its members, have little to bind themselves together. Therefore, “the primary purpose of
such a ritual is not so much to exclude the isolated persons as to bind together the per-
sons concurring in and carrying out the isolation.”” The glue that cements this bonding
may be the emotion of guilt. In other words, it is our shared guilt for doing to others that
which we would not want done to ourselves which binds us together.
The factors described above provide an indication of some of the societal level
anxieties which may, in some cases, lead to the imposition of exclusionary measures. As
often is the case, the application of these measures has been advocated or used dispro-
portionately against certain stigmatized groups –
for instance, persons infected with
HIV or AIDS. It is contended that such measures depend on and reflect our disidentifi-
cation from those whom we perceive as the “other”. This disidentification can allow us
to impose exclusionary measures on HIV-infected people in breach of principles of hu-
man rights, instead of reacting rationally and compassionately towards them according
to the human rights principles on which we claim our society is based.
S See M.A. Somerville, “Law as an ‘Art Form’ Reflecting AIDS: A Challenge to the Province and
Function of Law” in J. Miller, ed., Fluid Exchanges: Artists and Critics in the AIDS Crisis (Toronto:
University of Toronto Press, 1992) 287 [hereinafter “Law as an ‘Art Form’].
s” M. Woollacott, “Politicians Focus on Managing the Risk Society” The [Montreal] Gazette (17 Feb-
ruary 1996) B6 [hereinafter “Risk Society”] (Republished from The Guardian, London, England.)
“”Law as an ‘Art Form’, supra note 55 at 302 quoting D. Schulman, “Remembering Who We Are:
AIDS and Law in a Time of Madness” (1988) 3 AIDS and Public Policy at 75-76.
” “Law as an ‘Art Form”‘, ibid.
1998] M.A. SOMERVILLE AND S. WILSON-
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In relation to entry restrictions, a first level of disidentification is the “foreign” status
of all entrants.” This disidentification is reinforced, first, when foreigners are infected
with the agent of a feared disease such as HJV, and second, when they are from the
“outside” of “respectable” society as in the case of homosexuals and drug users –
two
groups in which there is a higher rate of HJV infection than in the general population. In
other words, HIV infection opens up multiple avenues for disidentification.
Any mistrust or fear of foreigners that exists is fortified by the fear of disease and
the a priori association of foreigners with disease. Both this fear and association can be
reinforced, without justification, by statements of “experts”. During syphilis epidemics
academics and physicians often called for tighter restrictions on immigration even
though medical examinations at ports did not reveal a high incidence of the disease.
These actions can have very long-lasting effects. It is noteworthy that immigrants are
still required to be tested for syphilis for entry into both the United States and Canada.’
A contemporary example of the fear of disease associated with the fear of foreigners is
what Watney describes as the “relentless demonizing [by Westem countries] of all the
communities around the world that have been most devastated by AIDS'”‘ Demonizing
is yet another very powerful form of disidentification. We see the evils we fear as being
personified in the others we demonize, and in doing so can feel that we are not tainted
by the same evil.
Uncertainty about both disease and foreigners thus gives rise to anxiety, and anxiety
to fear. When the two characteristics of disease and being a foreigner converge that per-
son becomes a target for powerful disidentification by those who harbour such fears. On
an emotional level, disidentification helps to assuage these fears, although there is no
logical basis for this response.
As a result of this disidentification from foreigners by the public in general, the im-
position of exclusionary measures is politically attractive. Migrants are the perfect target
group for politicians who wish to be seen as strong and effective leaders, to be “doing
something”, and not afraid to take “tough” measures. In the context of exclusion on the
basis of HIV infection or AIDS, they can also be seen to be managing a risk that has
evoked profound fear in the public.’2 At the same time, politicians are politically safe in
excluding non-nationals, including on the basis of their HIV status, because the persons
most harmed by this (i.e., those excluded) do not have a right to vote, and therefore can-
not retaliate against these politicians. The dual effect of such political actions may partly
explain what might seem to be a paradox in certain countries –
namely the co-
existence in law of anti-discrimination measures for the protection of nationals from
discrimination on the basis of illness (or, likewise, on the basis of nationality), and ex-
clusionary entry restrictions for non-nationals based on these same grounds. It is sug-
See Introduction, above, for more on this topic.
See R. Mickleburgh, “Stop Syphilis Tests for Immigrants, Panel Urges” The Globe and Mail (3
November 1992) A6.
61 Watney, supra note 54 at 191.
62 See Woollacott, supra note 56.
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gested that this apparent conflict can be understood by considering the desire of politi-
cians to please both liberals and conservatives in their constituencies.” In such a sce-
nario, it can be hoped that liberals will approve of and be appeased by the former type
of measure, and conservatives by the latter.”
Foreigners can also be useful as political scapegoats. In Managing Immigration: A
Framework for the 1990s’ written by Employment and Immigration Canada to explain
and to justify the proposed changes to the Immigration Act,’ migrants are frequently re-
ferred to in association with criminal activity and abuse of the welfare system.” This
characterization of migrants may both reflect and taint opinions of migrants, reducing
sympathy for all of them, including those in very difficult and life-threatening circum-
stances.
The general characterization of migrants as abusers of social welfare systems or as
criminals would indicate that migrants are perceived as morally different. We do not for
example perceive the general population in similar terms although it also contains a
certain proportion of abusers and criminals. This identification of a difference, here a
moral difference, is an integral part of the process of disidentification. Similarly, we
disidentify from an infectious disease by disidentifying from those infected with the
disease, which means that we need to see them as different from us. We can do this by
identifying the cause of the disease and our protection from it in terms of difference.
Such a difference may relate to the behaviour of others, for instance, homosexual be-
haviour or injection drug use. Consequently, when we learn that such people are in-
fected with HIV, we can reassure ourselves that we are unlike them (because we are not
homosexual or injection drug users) and therefore are not at risk of HIV infection. Some
people also classify homosexual behaviour or drug use as immoral. Such characteriza-
tion can also function as a difference –
allowing these people to disidentify further
when they characterize themselves as moral persons.
It will be important to keep in mind factors such as those discussed in this section,
particularly what they reflect in terms of the attitudes to foreigners –
in
the second principal section of this article, namely the law relating to migration. Law
both forms and reflects public opinion. It may seem an unusual question to some
lawyers, but we need to ask whether our law, in particular our immigration law, is
ethical?
the “other” –
6 See “Law as an ‘Art Form”‘, supra note 55 at 299.
” See discussion regarding actions taken by the U.S. Congress in legislating the HIV exclusion be-
low at Section I.1.
65 Supra note 6.
“R.S.C. 1985, c. 1-2.
” In all but five of the fourteen page introduction to this pamphlet, migrants are referred to in con-
junction with one or more of the terms criminal, spy, terrorist and subversive.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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II. The Legal Context of Exclusion on Grounds of Medical
Inadmissibility
The following section describes American and Canadian medical inadmissibility
provisions relating to HIV infection and AIDS. There is also a more detailed examina-
tion of the legal structure of immigration restrictions applicable to non-nationals.
A. Medical Inadmissibility in Travel and Immigration Law
1. United States of America
In 1891, a new law was passed restricting the admission of people “suffering from
loathsome or contagious diseases.”” The Public Health Service (PHS), influenced by the
contemporary eugenics movement, interpreted this law to include venereal diseases.
“The INA [Immigration and Nationality Act] identified diseases with a high degree of
social stigmatization as grounds for exclusion, rather than using a public health method-
In 1952, the
ology to determine those [diseases] capable of greatest harm to society.”
Inmigration and Nationality Act (INA) codified these provisions for the exclusion from
the United States of aliens suspected of having certain diseases and disabilities.”0 It in-
cluded both a general exclusion for aliens with “dangerous contagious diseases” and
specifically excluded aliens with tuberculosis and leprosy.’ The diseases listed in the
Public Health Service Manual for the Medical Examination of Aliens were, and are, still
socially stigmatized diseases. For example, in 1987, the seven “dangerous contagious
diseases” listed were all associated with social stigmatization. Five of these were vene-
real diseases (chancroid, gonorrhea, granuloma inguinale, lympho-granuloma venereum
and infectious-stage syphilis). The other two were tuberculosis and leprosy.”
On 8 June 1987, the PHS published a final rule adding AIDS to the list of “danger-
ous contagious diseases'” Before the regulations implementing this rule had been issued
by the PHS, Congress passed the Supplemental Appropriations Act.” Section 518 of this
Act, known as the “Helms Amendment”, directed the President to add HIV infection to
the PHS list of diseases on or before 31 August 1987. On 1 December 1987, the legis-
lative provision requiring serological testing of all immigrants for HIV infection and
AIDS came into effect.”
Overview of U.S. Policy, supra note 5 at 1.
G. Kirsch & R. Bayer, “Behind These Walls …: HIV/AIDS and U.S. Travel and Immigration Pol-
icy” (Columbia University) [unpublished] at 7.
70 8 U.S.C. I 101ff. [hereinafter INA].
71 See Overview of US. Policy, supra note 5 at 2.
71 See ibict at 3-4.
7″Pub. L. No. 100-71, 101 Stat. 425.
7, See Overview of US. Policy, supra note 5 at 5. The delay in implementing this provision was
caused by administrative difficulties.
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In the hnmigration Act of 1990″ Congress directed the Secretary of the Department
of Health and Human Services to review the provisions for the exclusion of applicants
for immigration on the basis of illness or medical condition according to “current epi-
demiological principles and medical standards.'” Section 601(a) of this Act repealed the
term “dangerous contagious diseases,” replacing it with “communicable disease of pub-
lic health significance”” This new terminology was adopted in order to reflect the in-
tention that medical exclusion should be based only on public health grounds.”
The PHS’s subsequent re-examination of the diseases listed led Secretary Sullivan
to the conclusion that only active tuberculosis should be retained as a “communicable
disease of public health significance.” He recommended that the other conditions
listed, including HIV infection or that the person came from an area where HIV infec-
tion was endemic, therefore should be removed from the list, because:
The risk of (or protection from) HIV infection comes not from the nationality of
the infected person, but from the specific behaviors that are practiced. Again, a
careful consideration of epidemiological principles and current medical knowl-
edge leads us to believe that allowing HIV-infected aliens into this country will
not impose a significant additional risk of HIV infection to the U.S. population,
where prevalence of HIV is already widespread.’
This proposal, however, proved to be politically untenable. During the thirty-day com-
ment period following its publication, approximately 40,000 written comments were re-
ceived. Ninety per cent of these letters opposed the removal of HIV infection from the
PHS list,” as did the Departments of Justice and State.” Their lobbying was successful.
On 31 May 1991, an interim rule was issued according to which the list remained un-
changed.” Paradoxically, it may have been because HIV was already widespread in the
United States that those who were HIV infected were excluded. A high prevalence and
incidence of HIV infection raises deep fears of being personally at the risk of a dread
disease, and therefore, can elicit a perceived need for disidentification. In addition, the
opportunity for disidentification with homosexuals and drug addicts –
by making an
objection to the proposed rule –
could comfort those members of the American society
seeking the affirmation of certain moral ideals.
75 Innigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended at 8
U.S.C. 1101ff.).
76 See 136 Cong. Rec. H13203-01 at H13238 (1990) cited in EJ. Lynch, “Medical Exclusion and
Admissions Policy: Statutes and Strictures” (1991) 23 J. Int. L. & Pol. 1001 at 1009-10.
“Supra note 75, 601(a).
7′ See Lynch, supra note 76 at 1009.
See United States, National Commission on Acquired Immune Deficiency Syndrome, Statement
on hunigration (Washington, DC.: National Commission on AIDS, 1991) [hereinafter Statement on
Immigration].
‘0 PHS, Medical Examination of Aliens, 56 Fed. Reg. 2,484 (1991) (codified at 42 C.FR. 34).
See “AFP Newsletter- May 1991″ (1991) 43 American Family Physician 1495.
‘2 See Kirsch & Bayer, supra note 69 at 8.
‘ See PHS, Medical Examination of Aliens, 36 Fed. Reg. 25,000 (1991) (codified at 42 C.F.R. 34).
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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A year later another attempt to remove HIV infection from the list of diseases was
made, and this time Congress responded. In 1992, part of President Clinton’s campaign
plan was a promise to end AIDS immigration restrictions. In February 1993, the PHS
Secretary appointed by the President was prepared to remove AIDS from the list of dis-
eases. Prior to the PHS Secretary taking action, however, Congress passed legislation
codifying the exclusion.” In the debate surrounding the passage of this bill, the focus
was on the nation’s healthcare system, and as part of this, the costs of allowing HIV-
positive persons into the U.S.’ There were questions whether the “public charge”
ground for exclusion would be sufficient, since although the costs could be significant
the applicant might not become a public charge.” A distinction between travelers and
immigrants seeking permanent residence was discussed, but nothing appeared in the fi-
nal legislation.” In short, all HIV-infected persons were primafacie excluded from entry
into the United States. With the tug-of-war between the Executive Administration and
Congress on the AIDS exclusion, and the pressure from the Judiciary for the avoidance
of discrimination and for respect for human rights, it appears that the conservative Con-
gress made a political power play in codifying the AIDS medical exclusion.”
All categories of migrants to the United States are affected by HIV-related entry re-
strictions, but in different ways. Certain groups, however, are exempt from testing. For
example, minors under the age of fifteen need not be tested unless there is reason to be-
lieve that they have an excludable disease.’9
84 See ibid. The addition to 8 U.S.C. 1 182(a)(1)(A)(i) of the language “which shall include infection
with the etiologic agent for acquired immune deficiency syndrome” was passed 10 June 1993, to be ef-
fective 30 days after enactment.
” See J. Fitzpatrick & W. M. Bennett, “A Lion in the Path? The Influence of International Law on the
Immigration Policy of the United States” (1995) 70 Wash. L. Rev. 589 at 617.
” The “public charge” exclusion excludes an alien who, in the opinion of the Attorney General, is
likely at any time to become a public charge. 8 U.S.C. I 182(a)(4) (1990). Compare this to the social-
ised healthcare system of Canada and “excessive demands” exclusion, in Section IA.2, below.
‘See Fitzpatrick & Bennett, supra note 85.
“For a discussion on the pressure from the Judiciary and an outline of some of the immigration
cases dealing with homosexuality see Pendleton, supra note 29. This article proposes that the HIV-
positive exclusion is unconstitutional on the grounds that it does not have a “fair and substantial rela-
tionship” to the exclusion’s purpose, and it constitutes “invidious discrimination”. The stated purpose
for this exclusion is the containment of the disease. Although this may be a legitimate governmental
interest, the exclusion is not rationally related to the achievement of this purpose since more than a
million Americans are infected, and the disease can only be transferred in limited ways –
not by
merely entering the country.
9 See D. Kuntz, “Contagious Diseases and Refugee Protection: AIDS Policy in the United States”
(Seminar on Migration Medicine of the International Organization for Migration, Washington, D.C., 6-
9 February 1990) at4.
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a. Visitors
Visitors to the United States are in principle excludable under INA section 212(a)(6)
if known to be HIV positive, but are not routinely tested for HIV antibodies.” Visa ap-
plicants will be asked about their HIV status, and those visitors who do not require visas
may be questioned about their seropositive status on entry. Thirty day waivers may be
granted to HIV-infected visitors. At first, the same criteria for waivers that applied to all
categories of excludable people were also applied to people with HIV infection or
AIDS’ In March 1988, however, stringent conditions for waivers were applied specifi-
cally to people with HIV infection or AIDS.”‘ The burden was placed on prospective
visitors to show (i) that their presence in the United States would create minimal danger
to public health; (ii) that the possibility of their spreading infection would be minimal;
and (iii) that no cost would be incurred by any level of government agency in the United
States as a result of their presence in the country, unless they had the prior consent of
that agency. An objective application of these criteria should mean the exclusion of very
few HIV-infected people, given the fact that HIV infection is not transmitted casually,
and that the absence of a system of generally accessible health care in the United States
eliminates concerns about potential burdens upon such a system. It may be, therefore,
that the function of these three criteria is not to protect public health and the public
purse, but rather to respond to “gut fears”, as well as to satisfy the political need, re-
ferred to previously, of being seen to “do something” about HIV infection and AIDS.
Since May 1989, waivers allowing entry to the United States for ten days have been
granted, on a discretionary basis, to HIV-positive visitors under INA section 212(d)(3), if
it is determined that their proposed visit confers a public benefit that outweighs the as-
sumed risk to public health.’ Activities deemed to involve a public benefit include aca-
demic or health-related activities (including treatment), attendance at conferences, and
business and family-related activities. However, tourism on the part of persons infected
with HIV is not considered to be an activity that confers a public benefit.” This provi-
sion was enacted in an attempt to address criticism of the law stipulating that HIV in-
fection was a “dangerous contagious disease” which meant that all HIV-infected aliens
were excluded. In protest against this law, several governments and many international
and national organizations boycotted the Sixth International Conference on AIDS held
Supra note 70.
9′ These criteria are (i) the risk of hann to society if the applicant is admitted; (ii) where relevant, the
seriousness of the applicant’s criminal law violation; and (iii) the nature of the applicant’s reasons for
wishing to enter the United States. See Lynch, supra note 76 at 1005-06.
9′ See Lynch, ibid at 1006.
93 Supra note 70.
See Overview of U.S. Policy, supra note 5 at 9.
See supra note 71.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
803
in San Francisco in June 1990.’ Similar protests against the restrictions that would ap-
ply to HIV-positive persons wishing to attend the Eighth International Conference on
AIDS (scheduled to have been held in Boston in 1992) caused that conference to be
moved to Amsterdam.
The application of these HIV-related restrictions to visitors does not comply with
the recommendations of many influential organizations in the fields of health protection
and law. These include the World Health Organization (WHO) which has declared that
“HIV screening of international travellers would be ineffective, impractical and waste-
ful’9 The American Bar Association (ABA), in 1989, likewise, made a declaration in
relation to non-immigrants that there should be no restrictions on the entry of travellers
on the basis of HIV infection.’ This did not stop Congress in persisting with the exclu-
sion of all aliens, including travellers and non-immigrants, testing HIV-positive?
b. Applicants for Permanent Residence
There are several categories of permanent residents, and slightly different require-
ments apply to each of these. However, all applicants for permanent status in the United
States must be tested for HIV infection, and may not be granted the status they seek if
they test positive.
No waivers were provided for seropositive applicants for permanent residence in
the United States until the Immigration Act of 1990.’ By creating a new category of
waiver, this Act made official the previous practice of the INS, which had granted “de-
ferred status” on a discretionary basis to avoid the deportation of HIV-infected parents,
children and spouses of United States citizens.”
Candidates for legalization of their status –
namely undocumented aliens who
have been in the United States since 1982 – may be granted waivers. Since the aim of
the legalization process was to facilitate the integration of undocumented aliens into so-
ciety, the original waiver policy was fairly liberal.’ 2 Waivers were granted where the ap-
9 See N. Gilmore, “Medical and Political Aspects of Travel for HIV-Positive Persons” in H.O. Lobel,
R. Steffen & RE. Kozarsky, eds., Travel Medicine 2 (Proceedings of the Second Conference on Inter-
national Travel Medicine, Atlanta, Georgia, 9-12 May 1991) 207 at 210.
WHO, Global Progran on AIDS: Statement on Screening of International Travellers for Infection
with Human hnimunodeficiency Vints (Geneva: WHO, 1987) at 1.
9 See American Bar Association, “Report of the Aids Coordinating Committee” (1989) 21 Toledo L.
Rev. 1 at 18 (Policy Recommendation N2) [hereinafter “Aids Coordinating Committee”].
” For a discussion of the International Health Regulations and the response by the U.S. see Fitz-
patrick & Bennett, supra note 85.
“o See supra note 75.
,01 See Overview of US. Policy, supra note 5, at 10.
” See C.L. Wolchok, “AIDS at the Frontier: United States Immigration Policy” (1989) 10 J. Legal
Med. 127 at 131. This policy was introduced by the Immigration Reform and Control Act of 1986, Pub.
L. No. 99-603, 100 Stat. 3359 313 (as codified at 8 U.S.C. 1187).
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plicant could show compelling family unity, humanitarian and/or public interest grounds
for remaining in the United States.’3
It is suggested that exclusion of legalization candidates may be particularly unjust
since the legalization process is open only to people who have been in the United States
since 1982, and therefore it is most probable that HIV-positive applicants among this
group were infected within the United States. The American Bar Association has rec-
ommended, in relation to this category of migrants, that:
Legalisation pursuant to the Immigration Reform and Control Act should not be
denied to otherwise-qualified aliens solely because of HIV status.’
The current waiver provisions apply to all aliens, making no distinction between
visitors and those seeking permanent residence. The waiver is issued at the discretion of
the Attorney General where the alien has a compelling family unity interest, as specified
by the provision.'” The provisions do not provide other grounds for a waiver.”M
c. Refugees
Refugees are subject to the same stringent conditions for waiver as legalization ap-
plicants. “In previous years waivers for refugees with contagious diseases were fairly
routine; this policy was in accord with U.S. laws and practice that treat refugees as spe-
cial cases. In the case of AIDS, however, waivers are the exception.”‘”M It is sobering to
think that this could mean that the political need to be seen to act against HIV infection
and AIDS may be given priority over the protection of persecuted people –
that is, the
former could be valued more highly than the latter. The a priori exclusion of HIV-
infected refugees does not comply with yet another recommendation of the ABA that,
“[o]therwise-qualified political asylees and refugees should not be barred from the
United States solely because of HIV status’ ‘ In the meantime the ABA has recom-
mended that a more individual approach be taken to the granting of waivers.
It merits keeping in mind the message conveyed by a country through the way it
treats refugees. As a U.S. Department of State witness testified during congressional
hearings on the Refugee Act of 1980, there can be,
A foreign policy interest to project in countries around the world the image of
U.S. humanitarian assistance for refugees. Such humanitarian assistance is a
,03 See Overview of U.S. Policy, supra note 5 at 10.
“Aids Coordinating Committee”, supra note 98 at 18 (Policy Recommendation N1).
,0S See 8 U.S.C. 1 182(g)(1) (1996).
‘0’ See ibidc
107 Kuntz, supra note 89 at 6.
1TSupra note 98 at 18 (Policy Recommendation N3).
..9 See Overview of U.S. Policy, supra note 5 at 17-18.
1998] M.A. SOMERVILLE AND S. WILSON-
IMMIGRATION AND HUMAN RIGHTS
805
glowing example of the purposes and processes of the free democracy which we
are, and of the free society which makes such assistance possible.”
It can be added that reinforcing this message may also be important in the domestic
community.”‘
2. Canada
There is no listing of named excludable diseases in the Canadian Immigration Act
or the regulations made pursuant to it.”‘ In this respect Canada, unlike the U.S., com-
plies with the WHO recommendations. Instead, in theory at least, the Act “permit[s]
much more discretion [than does the United States] for medical officers responsible for
assessing … [the] individual abilities [of a non-national seeking to enter Canada] to
combat or adapt to medical conditions [from which they suffer]'””
Medical inadmissibility in travel and immigration law is governed in Canada under
section 19(1)(a)(i) and (ii) of the Immigration Act.”‘ Aliens may be excluded from Can-
ada on the basis that they constitute a threat to public health, or that they would or could
place “excessive demands on health and social services”‘ 5 Only the latter ground is ap-
plied in relation to HIV infection or AIDS, since “HIV/AIDS is not considered a dan-
gerous, infectious disease, but rather a chronic disease like cancer or heart disease for
which the concern is potential excessive demand on health care and social services'””
The concern, therefore, is cost to the taxpayer, in view of the fact that Canada has a uni-
versal, comprehensive, socialized health care system in which citizens (and permanent
residents) have automatic access to advanced health care.”‘
With regard to the assessment of “excessive demands”, Citizenship and Immigra-
tion Canada issued a proposal for assessing what would constitute these. In the case of
,, Cited in T.J. Jones, “The Haitian Refugee Crisis: A Quest for Human Rights” (1993) 15 Mich. J.
Int’l L. 77 at 119-20.
… See M.A. Somerville, “The Case Against HIV Antibody Testing of Refugees and Immigrants”
(1989) 141 Can. Med. Assoc. J. 889.
“2Supra note 66 and infra note 124.
“3 Employment and Immigration Canada & Health and Welfare Canada, Medical Inadmissibility Re-
view (Discussion Paper) (Ottawa: Employment and Immigration Canada, 1991) at 5 [hereinafter Medi-
cal Inadmissibility Review]. General criteria include the need for surveillance of the person, the poten-
tial employability of the applicant in Canada, and the applicant’s probable response to treatment.
“, Supra note 66.
, Ibid., s. 19(1)(a)(ii).
“+ Medical Inadmissibility Review, supra note 113 at 44.
“, AZT and many other drugs used by people with AIDS are covered by provincial health care plans.
These plans, however, do not cover all drugs. For instance, some of those necessary to treat opportun-
istic infections are not covered. Most recently, debate arose concerning payment for persons other than
those on welfare for expensive new drugs that promise reduction in morbidity and premature mortality
(e.g., so-called “triple therapy”). Regarding this debate in Quebec, see for example, J. Heinrich, “Only
AIDS Patients on Welfare Will Get Second Drug for Free” The [Montreal] Gazette (20 February 1996)
A7.
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immigrants, “excessive demands are caused when the total costs of health and any re-
quired, prescribed social services, in the five years immediately following [medical] as-
sessment, exceed by more than five times the average per capita expenditures for health
and social services in Canada”” The stated aim in formulating this definition was to
“make the Regulations more objective and more open so that people who apply to come
to Canada will be able to understand the basis on which a determination of their medical
status is made”. However, the implementation of these regulations did not take place,
largely because of concern from the provinces about the health care costs they could in-
cur.’20 A subsequent proposal was to adopt a “sliding window principle:’ This would
have widened the period during which “costs” would be assessed, by estimating the
highest cost, consecutive five year period in the ten years following the medical exami-
nation.”‘ A case heard after this proposal was drafted, however, ruled that the Governor
General does not have the authority to make such regulations.'” Therefore, on the basis
of this case, any defining factors must be in the form of an amendment to the hnmigra-
tion Act.
In Ismaili,” the Court addressed the validity of section 22 of the Immigration
Regulations,’2’ which sets forth factors for the medical officer to consider in determining
whether a particular applicant will cause excessive demand on health or social services.
Effective I February 1993, Parliament had deleted from the Immigration Act the phrase
that had enabled the Governor General to make regulations regarding the criteria for
determining excessive demand. Based on the removal of this language, it was argued
that the part of section 22 that defined factors for the medical officer to consider in de-
termining “excessive demand” was ultra vires.
The Court held that the omission of this authority-granting language “must be pre-
sumed to be intentional.”” The Court, however, did not find section 22 completely ultra
vires. It held that section 22 is to be read as prescribing factors to be taken into account
in assessing danger to public health or public safety, but that it is not applicable to de-
termining whether there will be excessive demand on health or social services. There-
fore, “excessive demands” within section 19(a)(ii) of the Immigration Act must be inter-
preted without reference to the regulations.
.Proposed Regulations, C. Gaz. 1993.1.2558 at 2561. See also proposed amendments to Inmigra-
tion Regulations, 1978, s. 2(1) in C. Gaz., ibid. at 2570, Sch. 1, s.l.
9 C. Gaz., ibid. at 2561.
“‘ Interview by Dr. M. Somerville with Dr. N. Heywood, Director, Immigration Health Policy Selec-
tion Branch, Citizenship and Immigration (28 February 1996).
121 Ibid.
12 Ismaili v. Canada (Minister of Citizenship & hnmigration) (1995), 29 Imm. L.R. (2d) 1, 100
FT.R. 139 (F.C.T.D.) [cited to Imm. L.R.]. This is based on the removal of language in the enabling
legislation (s. 114 (1)(m) of the Inmigration Act, supra note 66) which gave the Governor General the
authority to make regulations regarding excessive demand.
Ibid.
‘2
‘2,hInuigration Regulations, S.O.R.78-172, s. 22.
‘2’Supra note 122 at para. 22.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
807
With regard to review of the medical officer’s opinion, the Ismaili Court found that
it had the power to inquire into the reasonableness of this opinion as to “probable de-
mands on government services,” but did not provide any criteria for such determina-
tion.’ Further, the Court stated that the visa officer must consider the reasonableness of
the medical officer’s decision and whether the medical officer ignored evidence. Past
cases do not provide much guidance as to the criteria for assessing “excessive demand”,
apart from the requirement of reasonableness.'” By not having a legislated definition of
“excessive demand”, the determination is in the sole discretion of the medical officer,
who is governed only by the requirement of reasonableness.’2′ Without the list of factors
in section 22 or some other guidance on factors to consider, the problems that existed
before section 22 in trying to determine “excessive demand” remain. The goals of ob-
jectivity and of helping the applicants to understand the basis on which a determination
of their medical inadmissibility was made cannot be achieved when the decision is
made pursuant to such broad discretion and with no defined criteria. This is especially
true when, although the decision is taken by a medical officer, it is based more on eco-
nomic factors than medical criteria.
sometimes unknowingly –
With discretion and lack of definition comes the opportunity for decisions to be af-
by the stigmatization associated with certain dis-
fected –
eases. As discussed in connection with the U.S. immigration laws, homosexuality is of-
ten associated with AIDS. Canada’s immigration laws have a similar history to those in
the U.S. with respect to homosexuality. For many years, homosexuals were excluded as
22 Ismaili, ibid. at 9ff. The court recognised that it is not competent to make findings of fact related to
a medical diagnosis, but could review the reasonableness of the medical officers’ decision. The Court
further stated that grounds for unreasonableness “include incoherence or inconsistency, absence of
supporting evidence, or failure to consider cogent evidence” (ibid. at 15). The Court found that the
medical officer did not consider all the evidence and that the factors relied on did not amount to exces-
sive use of the health and social services system. The court allowed the application, but referred it back
to the Minister of Citizenship & Immigration for reconsideration as to whether there would be exces-
sive demands.
.27 See K.H. Post, “Excessive Demands on Health and Social Services: s. 19(l)(a)(ii) Inmigration
Act – What is the Standard to Sponsor Infirm and Elderly Parents?” (1992) 8 J. L. & Soc. Pol’y 142 at
156. See also R Marrocco & H. Goslett, eds., The 1997 Annotated hImnigration Act of Canada (Scar-
borough, Ont.: Carswell, 1996) at 125-34. One case said “excessive!’ means more than normal. See
Jim v. Canada (S.G.) (1993), 22 Imm. L.R. (2d) 261, 69 F.T.R. 252. This raises the question of what is
“normal”, and what pool of persons is looked at (i.e. old, young, no family history of disease) in de-
termining the normal costs on the healthcare system.
,’ See mnigration Act, supra note 66, s. 19(l)(a). There has been some arguments made that the
medical officers are not trained to determine what constitutes excessive demand, based on the compli-
cated economic and legal analysis involved in making such determination. See Post, ibid. The Ismaili
Court did not go so far, but does say that “the visa officer – wholly apart from the decision of the
is obliged to consider whether the applicant’s medical condition would place ex-
medical officers –
cessive demands on health or social services. The visa officer, without second guessing the medical,
diagnostic opinion, must consider all of the available evidence” (Isinaili, supra note 122 at para. 31).
808
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a category of immigrants on the grounds that they had immoral purposes.’ = In the
1970s, Canada made substantial revisions to its immigration laws, and deleted many of
the outdated moralistic and medical terms of exclusion. “” Canada has progressed much
further than the U.S. in this respect, and now only excludes homosexuals if they happen
to be excluded by the grounds in section 19 which apply to all prospective immigrants.'”
Canada has responded to the change of attitudes toward homosexuals both medically
and socially. “The Canadian legislative debates on revising immigration laws repeatedly
addressed the humanizing aspects of the proposed Act and the elimination of tired,
moralistic language.”‘ 2 Now that it has deleted the moralistic language and highlighted
the humanizing aspects, Parliament needs to define the factors for determining exclu-
sion under section 19 – perhaps even by stating factors that must not be taken into ac-
count. This step is necessary to avoid prior stigmatisation from influencing the exercise
of discretion by the medical and visa officers. Homosexuality is just one example of
certain stigmatised characteristics that are associated with AIDS, injection drug use is
also commonly associated with the disease.
A society’s stigmatisation of certain diseases and its need to define morality con-
tribute to the determination of the exclusionary factors for immigrants. The latter is one
of the underlying drives determining the social and political factors which influence
immigration law. Understanding these factors and their influence helps us to understand
the need for a different concept of immigration law incorporating a broader application
of human rights.”‘
a. Visitors
The entry of visitors into Canada is governed under the same provisions regarding
exclusion on health grounds as immigrants. In practice, initially, visitors and immigrants
with HIV infection or AIDS were both excluded from Canada if their status were
known. In a speech to the 1991 Canadian AIDS Conference, the Minister of Health and
Welfare announced that “we will ensure that visitors with AIDS or HIV will be treated
in exactly the same manner as any other visitor to Canada.””‘ This has been interpreted
to mean that short-term visitors with HIV infection or AIDS would no longer be pre-
vented from entering Canada. However, there has been concern that the language of this
” See R. Green, “‘Give Me Your Tired, Your Poor, Your Huddled Masses’ (Of Heterosexuals): An
Analysis of American and Canadian Immigration Policy” (1987) Anglo-Am. L.R. 139.
30 See ibid.
“‘ Imnigration Act, supra note 66.
132 Green, supra note 129 at 158.
,’ This raises an interesting question of what comes first to affect change in these sensitive areas,
formal modification or modification of public attitudes? To what degree does one pull the other. For-
mal modification does not just mean legislation, but can also be recommendations or declarations by
professional organisations, for example, the declaration by the American Psychiatric Association that
homosexuality was no longer considered to be a mental disorder.
” Hons. P. Beatty (Minister of National Health and Welfare), “The National Strategy on AIDS Re-
visited” (National Conference on AIDS, Vancouver, British Columbia, 14 April 1991) at 9.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
809
policy is too vague to guarantee the free entry of HIV-infected visitors into the coun-
try. ‘ In fact there is some evidence that, in practice, short-term visitors suspected of
being infected with HIV have still been excluded.’36
b. Applicants for Permanent Residence
Prospective immigrants are not routinely tested for HIV infection, but they are re-
quired to submit to a medical examination –
and testing may be required at the discre-
tion of the examining medical officer.’7 Several issues are raised, however, by the form
used by physicians performing medical examinations for migration purposes. In No-
vember 1990, a new routine question concerning the HIV status of applicants was in-
cluded in this form. It is made clear to applicants that non-disclosure of conditions ad-
dressed by the questions may have serious consequences. If immigrant status were
granted on the basis of an incomplete or false answer, revocation of this status and the
person’s removal from Canada may occur. Testing for the purposes of immigration con-
stitutes mandatory testing, which raises the ethical question of the voluntariness of the
testing. Mandatory testing is that which cannot be avoided if one wishes to achieve a
certain benefit or status. It can be contrasted with compulsory testing, which cannot be
avoided.’38 Certainly, if all applicants were obliged to find out their HIV status in order
to be able to respond adequately to the questioning, this system might be characterised
as “mandatory testing with no mandatory test”
It now appears that the screening for diseases is going to become more stringent.’
Using a new computer model, Health Canada is assessing the risk posed by forty-seven
infectious diseases. The computer model study will allow assessment of the need to
screen immigrants for HIV, even though AIDS is not viewed as a public health issue.
The issue is cost, and this is being debated in various government departments, includ-
… See National Advisory Committee on AIDS, HIV and Human Rights in Canada (Ottawa: De-
partment of Health and Welfare, 1992) at 16. The hnmnigration Manual states however that
An applicant who is medically inadmissible as an immigrant is not necessarily inadmis-
sible as a visitor. A prospective immigrant’s medical condition may be likely to cause
excessive demands on health or social services because the person may not be self-
supporting and would need continuous family or social support. A visitor would not
likely require such assistance during a short stay in Canada (Employment and Immigra-
tion Canada, hnunigration Manual: Selection and Control (Ottawa: Employment and
Immigration Canada, 1984) at 6).
836 See K. Dunn, “HIV Carier Suing Canada for Refusing to Allow Him to Enter Country” The
[Montreal] Gazette (30 July 1992) A4.
137 See hnmigration Act, supra note 66, s. 11 (2).
“‘ See M.A. Somerville & N. Gilmore, Human lamnunodeficiency Virus Antibody Testing in Canada
(Ottawa: Health and Welfare Canada, 1989) at 22-25.
‘ See D. Jacobs, “Disease Screening for Immigrants Gets Tougher” Ottawa Citizen (25 July 1997)
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ing whether persons infected with HIV should be excluded because of the potential
medical costs.”‘
Under the current approach, in analysing an individual’s application, the medical of-
ficers use codes to identify different diseases. If an applicant is found to be HIV posi-
tive, then the appropriate code may be M-7 which stands for the finding that the appli-
cant is excludable because of the possibility of becoming an excessive demand on the
healthcare system. This classification is supposed to be a summary of the various factors
looked at by the medical officer in determining the individual’s ability to be a contrib-
uting member of society. But these codes could be used as rubber stamps to exclude
people with certain diseases. Rather than looking at the individual’s ability to contribute
to Canada and whether his or her health status is likely to interfere with this contribu-
tion, if the applicant is found to be HIV positive, he or she may be automatically la-
belled an M-7 and excluded on this basis. In other words, the concern is that the codes
are being used to state a particular medical condition and to exclude an applicant on that
basis, rather than on a proper evaluation of the individual’s condition and all relevant
circumstances.”‘ The medical officer looks up a particular condition in the Medical Of-
ficers’ Handbook’2 and sets forth the applicable codes in the prospective immigrant’s
Medical Profile.”‘ Leaving aside the issue of whether it is appropriate to have a medical
officer assess what constitutes an excessive demand, this procedure appears to limit, al-
most prohibit, the proper exercise of discretion by the medical officer, and sets up a re-
gime of rubber stamping certain conditions as being an excessive demand and therefore
excluding the applicant automatically.
The use of codes in such a way that certain medical conditions or infirmities will
always constitute an excessive demand contradicts the intention of the Canadian Inmi-
gration Act as a whole, and section 19 in particular. This section is meant to ensure that
each applicant is individually assessed in terms of medical inadmissibility. This practice
denies admissibility to individuals with certain ailments who are not likely to be an ex-
cessive demand on the health and social systems of Canada. The lack of definition as to
what constitutes excessivedemand, and of criteria for assessing this, contributes to the
codes being used to identify ailments (and exclusion on this basis), rather than evalua-
tion of the individual’s potential for excessive demand. This results in a failure to take
into account possible family support and the person’s capacity to be a functioning
member of society.
“‘ See ibid. at A2. According to the article, a research associate with Canadian Policy Research
Networks in Ottawa states that a person with HIV costs anywhere from $110,000 to $178,000 in direct
medical care, and other studies have added $600,000 as an indirect cost to society in lost productivity.
‘4’ See Post, supra note 127 at 161.
1′ Health and Welfare Canada, Medical Services Branch, Medical Officers’JHandbook: hnmigralion
Medical Service (Ottawa: Health and Welfare Canada, 1986).
14 See ibid.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
811
If the applicant is found to be seropositive, the person will be regarded as inadmis-
sible on medical grounds under the hnmigration Act ” and, consequently, cannot be
granted immigrant status because the Act requires that all such persons must be ex-
cluded. Persons with HIV infection may, however, be permitted to enter Canada if they
are granted a Minister’s Permit.’5 But the issuance of such permits is entirely discretion-
ary. Furthermore, they cannot exceed twelve months duration. The applicant can, as an
alternative, appeal the decision of inadmissibility on medical grounds. An appeal can be
based on the humanitarian and compassionate provision in the Immigration Act, or on
other legal grounds.’ The difficulty with any appeal is that it is costly, and it is difficult
to challenge the finding of inadmissibility of the medical officers and visa officers be-
cause of the lack of criteria and economic analysis used in their decision, and the unde-
fined term “excessive demands.” The courts have had problems developing a definition
of excessive demands. The outcome of any appeal thus cannot be predicted. This un-
predictability is a major deterrent when an applicant considers the costs and time that
may be involved with an appeal.
c. Refugees
Refugees are also required to submit to a medical examination. However, the effect
of this examination depends to a large extent on whether refugee status is claimed from
inside or outside of Canada. If the person is outside of Canada, then entry may be re-
fused on medical grounds, “although every effort is made to accommodate these peo-
ple?”‘ The medical examination may be waived if the refugee is in a third country
where personal security is threatened. If the person is claiming refugee status from in-
side Canada, however, the medical examination will not serve to prevent entry into Can-
ada, but only to provide an indication of the person’s medical condition.”‘ We strongly
advocate that, although Canada is not obligated by international law to accept refugees,
whether they present themselves at its borders or are within the country, refugees should
never be excluded on the basis of medical inadmissibility –
in particular, on the basis
of HIV infection or AIDS. Such a policy would recognize the special human rights
claims of refugees. In other words, although HIV status may be an issue at landing, in
relation to what is required in terms of provision of health care and education about
risk-avoiding behaviour, it should not be used as a basis for the non-conferral of refugee
status.
B. The Legal Structure
Medical inadmissibility criteria should not be considered in isolation from the wider
namely migration laws. This context is im-
legal structure of which they are a part –
, Inunigration Act, supra note 66, s. 11(1).
Ibid., s. 37(1).
146 Ibid.
“7 Medical Inadmissibility Review, supra note 113 at 47.
” See ibid. at 47-48.
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portant because other factors, such as the legal conceptualization of the relationship
between a migrant and the receiving state, must be considered to gain a more complete
understanding of these criteria. A good example is the belief that there is a parallel be-
tween the development of inadmissible classes of potential immigrants (including medi-
cal inadmissibility grounds) and a more restrictive attitude towards migration in North
America.’ 9 The theoretical concepts which underpin modem Western immigration law
reveal, once again, the powerful influence of a wide variety of social and political fac-
tors on the development of these laws.
1. Theories Underlying Present Immigration Law
The basis of modem immigration restrictions is a state’s absolute sovereignty over
its territory. This concept logically leads to the idea that the state has an absolute right to
exclude non-nationals, or to place conditions on their entry. As a result, entry into a for-
eign country has been considered a privilege, not a right. The theory that there is a right
to exclude all non-nationals has been adamantly supported and promulgated with the
advent of mass travel.
In this section the notion of absolute sovereignty is examined and questioned, in
particular, as the basis of the right to exclude all non-nationals. First, it is suggested that
sovereignty itself is not absolute or unlimited. Second, although sovereignty is often
the origins of its expression in such an extreme form are quite
presented as “ancient”,’
recent. This concept may be further understood as a response to the convergence of
certain historical circumstances. Finally, the emphasis on the state’s absolute right to ex-
clude would seem inconsistent with many recent developments in international law
which focus on greater cooperation between states.” It is suggested that migration law
in general, and medical inadmissibility criteria in particular, should be re-evaluated to
take such developments into account. For instance, the scope of the state’s right to ex-
clude non-nationals would be better defined in relation to different categories of non-
nationals seeking entry, and human rights considerations should be applied more con-
sistently in this area of law.
a. The Concepts of Sovereignty and the Right to Exclude All
Aliens
The theory that a state has the right to exclude all aliens is by far the most promi-
nent of those governing the relationship of migrants with a receiving state. Borchard
wrote:
” See J. Grey, nunigration Law in Canada (Toronto: Butterworths, 1984) at 12.
‘5 See Kleindienst v. Mandel, 408 U.S. 753 at 765, 92 S. Ct. 2576 (1972) [hereinafter Kleindienst].
,’ It might also be suggested that such absolute rights are out-of-step with domestic legal structures
in both Canada and the United States which provide for scrutiny of legislative acts. In this regard it
should be kept in mind that the basis and concepts of immigration law are legislative, although its ap-
plication in particular cases is through administrative action.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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[Taking the sovereignty of the state and its right of self-preservation as the point
of departure … publicists, by far the more numerous, agree that there is an inher-
ent right of the state to exclude aliens at its pleasure.’ 2
The most vehement expressions of this concept of sovereignty are found in late nine-
teenth century Anglo-American case law. In Nishimura Ekiu v. United States, for exam-
ple, it was stated that,
It is an accepted maxim of international law, that every sovereign nation has the
power, as inherent in sovereignty, and essential to self-preservation, to forbid the
entry of foreigners within its dominions, or to admit them only in such cases and
upon such conditions as it may see fit to prescribe.’
This and other cases (e.g. Chae Chan Ping v. United States)'” claimed to base their pro-
nouncements on the work of Vattel.'” The use made of his writings will be examined
later. This idea of absolute sovereignty, however, has retained a tenacious hold over the
minds of judges who refer to it as “ancient”.’5″
A logical result of the dominance of this theory is that there is no right of interna-
tional freedom of movement or mobility. This means that freedom of movement pro-
tected under human rights provisions’
is limited to internal travel and the right to leave
and enter one’s own state.’56 The only situation where there is a generalized right to enter
a foreign country is with respect to non-nationals whose states have consented to the
existence of:
[S]pecial guarantees, written into a treaty and reinforced by provisions of mu-
nicipal law. The high point at the present time is the special regime operating
within the E.E.C.'”9
In the European Union the emphasis is on the interdependence of member states. Not
only do EU citizens have the right to enter all participating states,'” but the practical ex-
ercise of this right is facilitated by the extension of social security rights to residents
from other member states. These rights, however, do not exist independently of a treaty
signed by each member state. Furthermore, this Treaty was not signed to further the
ideal of the cooperation of states, rather, it was signed on account of economic concerns.
,52 E.M. Borchard, The Diplomatic Protection of Citizens Abroad (New York: Banks Law, 1916) at
45.
‘”142 U.S. 651 at 659, 12 S. Ct. 336 (1892) [hereinafter Nishimura cited to U.S.].
‘”130 U.S. 581,9 S. Ct. 623 (1889) [hereinafter Chinese Exclusion cited to U.S.].
‘”E. de Vattel, The Law of Nations (London: Robinson, 1793)
56 See Kleindienst, supra note 150.
‘ See art. 13, Universal Declaration of Human Rights, GA Res. 217(111), UN GAOR, 3d Sess.,
Supp. No. 13, UN Doc. A/810 (1948) 71.
,’ It is an interesting and important question whether it can be argued that persons whose life is in
peril (refugees) have any right to enter states of which they are not nationals or seeking refuge.
,”‘ G.S. Goodwin-Gill, International Law and the Movement of Persons Between States (Oxford:
Clarendon Press, 1978) at 196.
‘6 Treaty Establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 3,
U.K.T.S. 1979 No. 15, arts. 48(2), 3(c).
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This is evident when one considers the present concern with immigration from outside
the community.”
b. The Notion of Limited Sovereignty
The notion of sovereignty, outlined above, and the right to exclude all aliens were
not intended to be as absolute as contended. According to Delbrueck, the notion of ab-
solute sovereignty rests on a reading of Bodin’ 2 (the sixteenth-century authority cited
for this concept), which pays little attention to the context and practical purpose of that
author’s work.'” The latter’s concern was not to elaborate an abstract notion of absolute
power, but to provide a concept that would facilitate and justify the centralization of
authority in the monarch as a means of ending religious strife. This was to the detriment
of other powerful groups, such as the church and the nobility.” Moreover, Delbrueck
argues that Bodin’s notion of sovereignty with regard to external relations, should be
understood in a functional way, as giving states “the necessary competence and power
to act as stable partners in international relations.'”” Delbrueck also explains that other
theorists, including Vattel, held that the power of the monarch was limited by divine or
natural law.” Vattel’s concept of sovereignty was that sovereign power was limited by
sovereign duties. It is interesting to contemplate in modem societies that have stripped
monarchs of their traditional powers and vested powers in the state and its constitutional
instruments, whether the modem equivalent of sovereign duties is to be found within the
state’s obligations to protect human rights.
On closer examination, even the Nishinura'” and Chinese Exclusion'” cases do not
espouse an absolute notion of sovereignty. Numerous examples used to illustrate the
supposed absolute right to exclude refer only to situations in which the presence of ali-
ens would present a danger to the state. “The control of the people within its limits, and
the right to expel from its territory persons who are dangerous to the peace of the State,
are too clearly within the essential attributes of sovereignty to be seriously contested'”‘
Self-preservation in time of crisis is emphasized in these cases, rather than an absolute
right to exclude all non-nationals.
.6. See J. Eyal, “When the Millions Start to Flee” The Globe and Mail (3 August 1992) A-I 1.
..2 j. Bodin, The Six Bookes ofa Coininonweale (Cambridge: Harvard University Press, 1962).
‘3 See J. Delbrueck, “International Protection of Human Rights and State Sovereignty” (1982) 57
Ind. L.J. 567.
‘”‘ See ibiel at 569.
‘6 Ibid. at 570.
‘6 See ibid.
..7 Supra note 153.
‘ Supra note 154.
,69 Chinese Exclusion, ibid. at 607.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
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c. The Contingency of Notions of Sovereignty and of the State’s
Right to Exclude Aliens on the Basis of Social and Economic
Circumstances
Although, by 1972, the state’s absolute right to exclude had come to be considered
an ancient principle of law, “[b]efore the late 19th century, there was little, in principle,
to support the absolute exclusion of aliens.”‘ 70 Before this time there were no large-scale
systematic immigration controls; but there was also no large-scale immigration. The de-
velopment of such controls reflects, among other things, new social realities such as the
much greater accessibility of long-distance travel, combined with large-scale upheavals
during and in their wake.”‘
In Canada and the U.S., the development of a state’s right to exclude all aliens, and
its translation into immigration controls, represented a reversal of the laissez-faire atti-
tude to immigration which had immediately preceded it:
For nearly a century after the French Revolution … freedom of movement was
encouraged in the West by an expanding economy, an unusual compatibility of
demographic interests between source and destination countries, Manifest Des-
tiny in the Western Hemisphere, and the predominance of liberal thought con-
ducive to the free circulation of human beings and capital.’
The social and economic conditions, as well as intellectual notions that led to the impo-
sition of immigration restrictions, including the development of the right to privacy, the
influence of the legal theory of positivism and the impact of “nativism'”” will be exam-
ined in this section.
In the nineteenth century, the growth of increasingly unsanitary industrial cities co-
incided with the emergence of a bourgeois ideal of privacy.'” Today the concept of pri-
vacy is more or less taken for granted. In a generalized form, however, this mental
boundary between public and private space is a very recent concept.”‘ In some respects,
its introduction was revolutionary and led to the notion that well beyond the traditional
doctrines of real and personal property law, we can own or control certain space (in-
170 J.A.R. Nafziger, “The General Admission of Aliens under International Law” (1983) 77 Am. J.
Int’l L. 804 at 809.
,’ Many Immigration Acts were passed as war measures. See R. Plender, International Migration
Law, rev. 2d ed. (London: Martinus Nijhoff, 1987) at 75-76.
,’ Nafziger, supra note 170 at 815.
‘ The influence of nativism or racism can be seen in the fact that the case law cited in favour of the
right to exclude all aliens is almost exclusively concerned with excluding Asian immigrants. It should
be noted, however, that the reasons for such racially biased exclusion go beyond racism, per se, and
can be complex. See A. Macklin, “Canadian Immigration Policy towards Asians from Confederation
to 1922: Lessons from the Past” (Halifax: Dalhousie University, 1987) [unpublished].
“See W. Rybczynski, Home: A Short History of an Idea (New York: Penguin, 1987).
‘7, See Goudsblom, supra note 39 at 179.
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cluding in recent times our own body) in order to keep others out.”‘ This right of exclu-
sion of others from our own private space is applicable at all times. It is this permanent
element that distinguishes the concept of private space –
and its public space corollary
–
from the imposition of exclusionary measures, such as quarantine, in times of crisis.
The analogy between the emergence of this concept and the development of systematic
immigration controls is interesting. This notion of micro or individual control over one’s
private space translates, on a macro or societal scale, to the idea of a state having per-
manent controls on the entry of aliens into its territory. Nafziger, moreover, argues:
The proposition [that sovereign states had an absolute right to exclude aliens]
arose just as the American and other frontiers of new settlement disappeared and
at the peak of emigration from Europe and the Orient to the United States and
the British Empire. Because these historical circumstances developed during the
heyday of Austinian and Holmesian positivism, with its peculiar limitation of
law to sovereign commands, the nativist pronouncements of courts became en-
graved in stone.’77
Two important factors, which led to the adoption and maintenance of the notion of the
state’s right to exclude all aliens, are identified in this statement.
First, there was the influence of nativism. The impact of this movement on the in-
troduction of medical inadmissibility criteria at the end of the nineteenth century has al-
ready been noted.’7’ Nativist concerns, according to Nafziger, were also influential in the
introduction of migration controls in general. It should be noted that the nineteenth
century cases often cited to support the proposition that a state had a right to exclude all
non-nationals, largely concerned the exclusion of Asian migrants –
particularly those
of Chinese origin. The Chinese Exclusion case,'” for example, involved the exclusion of
a returning Chinese migrant who had resided in California for many years, and who was
in possession of a certificate entitling him to return to the U.S. The Court retroactively
declared the certificate void on the grounds that a state always retained the right to ex-
clude. The nativist influence on the decision is evident from the following excerpt:
[A] limitation to the immigration of certain classes from China was essential to
the peace of the community on the Pacific Coast, and possibly to the preserva-
tion of our civilization there.”‘
Nafziger believes that the influence of nativist case law was tenacious because it
was elaborated when positivism dominated legal theory.”‘ The positivist legal notions
” See M.A. Somerville, “Ethics and Architects: Spaces, Voids, and Travelling-in-Hope” in L. Pelle-
tier & A. Pfrez-G6mez, eds., Architecture, Ethics and Technology (Montreal: McGill-Queen’s Univer-
sity Press, 1994) 6 1.
‘” Nafziger, supra note 170 at 808 [emphasis added].
,71 See text accompanying note 58.
‘”Supra note 154.
“0 Chinese Exclusion, ibid. at 594. For a description of anti-Asian migration legislation in Canada
see B. Ryder, “Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian
Immigration Legislation, 1884-1909” (1991) 29 Osgoode Hall L.J. 619.
“‘ See Nafziger, supra note 170.
1998] M.A. SOMERVILLE AND S. WILSON- IMMIGRATION AND HUMAN RIGHTS
817
ruled out concern for the natural law obligations of the sovereign, which in effect were
limiting devices on the exercise of sovereign power. Instead, positivists focused on a
definitional, conceptualizing approach to the law, detaching it from an examination of
the law’s purpose.”2 However, as Sugarman points out, this exercise in conceptualization
was motivated by several, somewhat paradoxical, purposes. These included the desire
for stability in the face of greater democracy, and the fear of the socialist activity of par-
liament in the late nineteenth century:
Dicey defined the political problem of the age as ‘…how to form conservative
democracies … to give constitutions resting on the will of the people the stability
and permanence which has hitherto been found only in monarchical or aristo-
cratic states’. ‘
Therefore, in promoting their concepts of sovereignty, Bodin in the sixteenth cen-
tury and Dicey in the nineteenth century, shared the desire to reconceptualize the law in
order to facilitate greater political and social stability. They differed in their conception
of the sovereign, but these differences reflected the political contexts at the time each
was writing. Bodin conceived of the monarch as sovereign, in contrast with others (such
as Hobbes) who focused on parliament. Dicey’s approach had to be more subtle. Al-
though he could not deny the supremacy of parliament, he wished to avoid the concen-
tration of power in the hands of that increasingly socialist body. Thus, a conceptualizing
approach to the law –
and the boundary
between public and private spheres became of major importance. The crucial impor-
tance of this approach and distinction particularly lies in the authority given to the legal
profession to monitor it. This function “places judges, lawyers and jurists in the centre
of government while protecting them from the charge of having usurped Parliament?””
one example of which is legal positivism –
Similar points relating to the motivation of jurists may be raised in relation to an
opposing theory underlying immigration law –
that of the interdependence of states.
According to this viewpoint, there is a fundamental right of international movement
“between states … [and] no state can absolutely forbid entrance to aliens, although it
may exclude those whose presence is a menace to the welfare of the state?””
This theory was supported by numerous continental European jurists, as well as
members of the Latin American school.”‘ Their perspectives were also subject, in part,
to contemporary political and commercial needs. Spanish jurists, such as Vitoria, were
concerned with the promotion of freedom of movement as a legal justification for the
“‘ See J. Boyle, “Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Lan-
guage, Power, and Essentialism” (1987) 135 U. Pa. L. Rev. 383 at 396.
‘ D. Sugarman, “The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science” (1983) 46
Mod. L. Rev. 102 at 109 quoting A.V. Dicey, Introduction to the Study of the Law of the Constitution
(1885).
Ibid. at 108.
” Borchard, supra note 152 at 45.
“‘ See Plender, supra note 171 at 61.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Spanish colonization of the New World.’
writers such as Su~irez, used this theory to promote immigration to Latin America.”‘
In the nineteenth century, Latin American
The concepts underlying migration law thus may be seen to be strongly influenced
by political and social factors. The concept of absolute sovereignty, and by extension the
notion of a right to exclude all aliens, has retained a powerful hold over the thinking and
policy-making in relation to immigration law. In a recent American decision, reiterating
the view that immigration into the U.S. is a privilege and not a right,”‘ it was held that
no alien has a right to enter the United States.”‘ Such adamant statements in recent years
are the result of the rising concern about migration from the South. The perception of an
overriding absolute power to exclude aliens thus remains in place, even though an ex-
amination of present law and practice indicates that the concept of sovereignty is now
understood to be limited in several important ways.
d. Limits on the Notion of Sovereignty Indicated by Actual Law
and Practice
Sovereignty has traditionally been defined with reference to the internal structure of
states. The scope of the notion, however, has never been fully defined with reference to
the external relations of states.”
In recent years there has been less willingness to accept a notion of absolute sover-
eignty as part of either domestic or international law. In relation to international law,
Kindred et al. have indicated that,
[O]ther principles that deny the exclusiveness of state’s rights have also been de-
veloping. These principles reflect the economic, military and political realities of
this century, which is marked by interdependence of states, community of hu-
man interests, and unity of the global physical environment. Recognition of
these realities has found expression in modem international law and their influ-
ence is a distinctive feature of the United Nations’ era.’
For instance, “la souverainet6 territoriale de l’ttat a 6t6 amfnagfe par voie convention-
nelle et coutumi~re dans plusieurs domaines. Ainsi, l’immunit6 souveraine, les immu-
nit6s diplomatiques et consulaires, le droit de passage inoffensif dans la mer territoriale
des ttats c~tiers … sont autant d’exceptions i la souverainet6 de l’ttat'”9 Chapter VII
“, See Nafziger, supra note 170 at 811.
‘See Plender, supra note 171 at 73.
See United States e. rel. Knauff v. Shauglinessy, 338 U.S. 537 at 542, 70 S. Ct. 309 (1950).
‘9’ See Haitian Centers Council, Inc. v. McNary, 969 F2d 1327 at 1369, 61 U.S.L.W. 2081 (2d Cir.
1992) [hereinafter McNary cited to F2d].
“‘. See J. Talpis, “La maitrise du sol en droit international priv6″ (1991)
(Num ro spfcial Henri
Capitant) R. du N. 55.
’92 H.M. Kindred et aL, International Law Chiefly as Interpreted and Applied in Canada, 4th ed. (To-
ronto: Emond Montgomery, 1987) at 820.
‘” C. Emanuelli, “La maitrise du sol en droit international public” (1991) (Numfro spdcial Henri
Capitant) R. du N. 71 at 95.
1998] M.A. SOMERVILLE AND S. WILSON -IMMIGRATION AND HUMAN RIGHTS
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of the Charter of the United Nations’4 provides that the UN can interfere with member
states’ policies if they endanger international peace and security.'” And the principle of
non-discrimination, particularly on the basis of race, is now accepted in international
law. Condemnations of the internal policies of different nations, moreover, are not
judged to be unjustified intrusions into the national jurisdiction of a country.’6
The principle of non-discrimination has affected migration law in Canada and the
U.S.”‘ Other human rights considerations and the practical impossibility of excluding all
aliens also influence the law and practice in relation to aliens. The latter factor was rec-
ognized in the New Zealand case of Chandra v. Minister of Immigration.’9’ Barker J.
stated, “I consider from a common sense point of view there is much to be said for [the]
submission that the old concept of the Royal prerogative to keep foreigners at bay has
been superseded by the modem transportation and the mass population movements of
the 20th century” ‘ ”
A variety of humanitarian concerns have also mitigated, to a certain extent, the no-
tion of an absolute right to exclude. Examples include the protection of refugees and the
preferential treatment afforded to family class immigrants. At first glance the protection
of refugees, however, would seem to be dependent on the good will of host states. The
expression “right of asylum” (suggesting that refugees have a right to enter other coun-
tries) is in fact a misnomer. Rather, the basic obligation of signatory states to the Refu-
gee Convention is that of non-refoulement.’ State practice, moreover, affirms that,
[The right of asylum is the right of the [s]tate to grant protection, which in turn
is founded on the “undisputed rule of international law” that every [s]tate has
exclusive control over the individuals within its territory. ‘O
One can thus analyze and compare the crucial difference for refugee claimants between
Germany and the U.S. Until May 1993, article 16a of the German Basic Law guaran-
teed the right of entry of those seeking asylum.’1
‘0 In the U.S., however, it was affirmed
that, “[n]o alien, even one who satisfies the standard of ‘refugee’, has a right to asylum,
or a right to enter the United States.””‘
In recent years, “[t]his exclusively jurisdictional approach has been mitigated
somewhat by increased recognition of protection as a humanitarian duty.”‘ While the
Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, c. 7.
‘g’ See Delbrueck, supra note 163 at 571.
See ibid. at 571-72. For example, the previous apartheid regime in South Africa.
97 See Section II.B.2, below.
‘
[1978] 2 N.Z.L.R. 559.
‘Ibid. at 568.
“‘ Supra note 13.
201 Goodwin-Gill, supra note 159 at 138.
‘2 See supra note 12.
“” McNary, supra note 190 at 1369 referring to hnnigration and Naturalization Service v. Cardoza-
Fonseca, 480 U.S. 421 at 428 n. 5, 107 S. Ct. 1207 (1987).
29 Goodwin-Gill, supra note 159 at 138.
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following developments do not provide asylum claimants with a right to enter another
country, they may indicate the recognition of certain duties by states towards non-
nationals to the point that state sovereignty may be considered less than absolute. With
approval, Grey quotes Brownlie’s view that the rules governing refugees may now form
part of international law, independently of their being made applicable through treaty.”‘
In other words, the obligations of a state towards refugees do not depend on their being
explicitly consented to by that state. Goodwin-Gill is more guarded. He argues, how-
ever, that while “it is still to be doubted whether there is any rule which obliges [sitates
to admit those fleeing from persecution … admission or continued residence may be se-
cured in roundabout fashion.””‘ This contention gains support from figures released by
the European Consultation on Refugees and Exiles, claiming that “at least 80 per cent of
all rejected asylum seekers remain [in their country of refuge] in one way or another’ ’07
Goodwin-Gill asserts that “[t]he Convention … does oblige state parties not to impose
penalties for illegal entry on refugees, provided that they report to the authorities with-
out delay and show good cause for their actions””‘2 ‘
Another way refugees can be given a minimum level of human rights protection is
through courts insisting that they have a right to procedural due process in the determi-
nation of their claim to refugee status. In the U.S.,”‘ judicial deference to the executive
branch of government to use its plenary power in relation to the admission of aliens in
whatever manner it sees fit,2 ‘ has been questioned on the basis of “the procedural meth-
ods used to effectuate the alien’s exclusion'”‘ Thus the “[Supreme] Court has scruti-
nized exclusionary procedures to ensure compliance with the Due Process Clause of the
Fifth Amendment “‘ 2 1
The treatment of Haitian refugees illustrates how human rights issues may be ig-
nored, including the concern for due process and the claims to fundamental justice that
respect for this right upholds and implements. Regarding the internment of HIV-positive
Haitian refugees at Guantanamo Bay Naval Base, nine members of the National Com-
mission on AIDS alleged in a brief before a federal appeals court that:
[United States’] immigration officials are not complying with federal regulations
and procedures for HIV testing of aliens by physically abusing and forcibly co-
ercing the Haitians to be tested, by failing to secure informed consent for the
See Grey, supra note 149 at 130.
Goodwin-Gill, supra note 159 at 138.
207 Financial Times, supra note 7.
‘” Goodwin-Gill, supra note 159 at 139.
20 See K.A. Krzynowek, “Haitian Centers Council, Inc. v. Sale: Rejecting the Indefinite Detention of
HIV-infected Aliens” (1995) 11 J. Contemp. Health L. & Pol’y 541.
“‘ See ibid., citing P.H. Schuck, “The Transformation of Immigration Law” (1984) 84 Col. L. Rev. I
at 16.
212 See Krzynowek, ibid. at 547, citing Shaughnessy v. United States ex reL Mezei, 345 U.S. 206 at
219-21, 73 S. Ct. 625 (1953) (Jackson J. in dissent).
212 Krzynowek, ibid at 548.
1998] M.A. SOMERVILLE AND S. WILSON- IMMIGRATION AND HUMAN RIGHTS
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tests, and by failure to conduct confirmatory tests before determining that Hai-
tians are seropositive.”3
There was hope, however, that case law might lead to some improvement in the general
treatment of Haitian refugees. A U.S. Federal Appeal Court held that the administra-
tion’s policy of intercepting Haitian refugees at sea and returning them to Haiti without
a hearing was contrary to the U.S. Immigration and Nationality Act,2 ‘ which endorses
the principle of non-refoulement. The INA, in turn, was held to apply to the extraterrito-
rial acts of U.S. officials.”5 The U.S. Supreme Court granted a writ of certiorari2 ” and
the case was heard as the restyled Sale v. Haitian Centers Council, Inc.”t 7 In what Jones
has called the “Dred Scott Case” of immigration law, the Court held, “that Haitian refu-
gees, intercepted on the high seas by the [United States] Coast Guard, have no cogniza-
ble legal rights under the domestic law of the United States or under conventional inter-
national law “‘
‘
Subsequent to this Supreme Court decision, the U.S. District Court in New York is-
sued a judgment effectively ordering the U.S. to shut down the detention centre in
Guantanamo Bay, describing this as “nothing more than an HIV prison camp’2 9 and
ruling that the indefinite detention of HIV-positive persons was illegal. This decision
was not appealed. The result was that these persons gained entry to the U.S. despite
their HIV infection.” How such a decision would be dealt with by the U.S. Supreme
Court thus remains an open question.
The humanitarian concerns mentioned above may be seen to influence domestic
Canadian immigration law to some extent. The protection of refugees and the reunifica-
tion of family members have been recognized as objectives of the Canadian Immigra-
tion Act in section 3.V These are not, however, the only aims expressed in that section:
Section 3 expresses the ideology of Canadian society. It does not encourage
immigration but with its emphasis on human rights, the reunion of families, and
the enrichment of Canada’s cultural heritage it sounds like a very liberal provi-
sion. However, s.3 contains no concrete provisions and one can see in subsection
(a) the subordination of immigration to Canada’s economic policies at any
time.
‘
The Canadian recognition of a humanitarian duty to refugees and family member is,
however, also tempered by other provisions. Refugees may be determined inadmissible
2,3 “AIDS: Commission Members Attack INS Policy Restricting Asylum for HIV-Infected Haitians”
(1992) 7:10 AIDS Policy & Law 1 at 2.
2, 4 Supra note 70.
215 See McNary, supra note 190.
216 509 U.S. 918, 113 S. Ct. 3028 (1993).
217 509 U.S. 155, 113 S. Ct. 2549 (1993).
218 Jones, supra note 110 at 102.
2″9 Haitian Centers Council, Inc. v. Sale, 823
2″ See Krzynowek, supra note 209 at 549.
221 Supra note 66 s. 3.
22 Grey, supra note 149 at 27.
. Supp. 1028 at 1038 (N.Y. 1993).
822
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to Canada under section 19(f), which bars those involved in terrorism or subversion.”
Grey has criticized this provision as overly broad and has asserted that “a genuine refu-
gee could be returned to his country merely because he seeks to overthrow its govern-
ment. This could happen even if its government was morally repugnant”” With respect
to family members, including of refugees, Grey also criticizes the fact that close rela-
tives must show that they do not fall into an inadmissible class,”
While human rights considerations may have influenced domestic Canadian immi-
gration law to some extent, other concerns play an important role in the elaboration of
policy. The crucial topic of what these other concerns are will not be addressed here.
However, relatively recent amendments to the Immigration Act in Canada,” ‘ and the
Haitian interdiction programme in the U.S., 7 indicate a strong negative political reac-
tion to the arrival of increasing numbers of migrants – which can easily translate into
human rights violations against the persons they are aimed at excluding. In the case of
the Haitians, the seropositive status of some migrants, and the perception that there is a
particularly high rate of HIV infection among Haitians, undoubtedly added to this po-
litical reaction and the likelihood of such human rights violations. It is hoped that gov-
ernments will formulate their policies and consider the point of view that,
[R]efugee protection is about neither immigration nor management22′ … refugees
in fact, in law, and by the terms of Canada’s international obligations, are self-
selected…. Managing immigration in a refugee protection context means artifi-
cially denying protection to real refugees.’
e. Conclusions with Regard to the Notion of Sovereignty and the
Right to Exclude Aliens
The law and practice in relation to aliens, particularly certain groups of aliens (such
as refugees), would therefore seem to indicate a qualified right of states to exclude ali-
ens. The fact remains, however, that,
Although historically and analytically the concept [of the absolute right to ex-
clude] may be doubtful in its application to alien admissions, it looms large in
223Supra note 66 s. 19(0.
224 Supra note 149 at 45. He further notes that “in immigration, we are spared embarrassment by the
hard-line taken by other western governments and courts” (ibid. at 160, n. 328).
22″ See ibid. at 148. Furthermore, “[ilt is an inescapable conclusion that the definitions of ‘family
class’ and the sponsorship process are far too complex and too technical and have too many restrictions
capable of causing injustice” (ibid. at 141).
26 Supra note 66.
2 7 Supra note 213 and accompanying text.
226 “Immigration management” is the term used by the Canadian government to describe its new
policies, see supra note 6.
2 D. Matas, Brief of the Canadian Council for Refitgees to the Legislative Committee on Bill C-86
(Montreal: Canadian Council for Refugees, 1992) at 1.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
823
judicial and legislative discussions concerning the general admission of aliens. It
has a life of its own.””
This is the lasting effect of the conceptualizing, positivistic approach to law of Dicey
an approach which still influences legal training today. The logic
and his followers –
thus generated by an unlimited right to exclude aliens continues to influence policy-
making with regard to immigration and refugee law. A more nuanced approach with re-
gard to the admission of certain groups of aliens, and the grounds on which they may be
excluded, has not yet been accepted in mainstream theory. At present, it is also unlikely
to be accepted by policy-makers.
The re-evaluation of migration law, a different basic concept in recognition of quali-
fications on the state’s right to exclude, and more flexibility in relation to the different
categories of migrants might provide a more honest reflection of migration in practice.
A new concept could take greater account of the interests of migrants, and not only
those of the receiving state. The current position in Canada is that only at the “moment
[that foreigners] step on to Canadian soil [are they] subject to [the] various legal obliga-
tions and … rights” of Canadian law.’
If the underlying concepts of migration law were to be re-considered in the light of
a broad approach to human rights, it would be more likely that domestic human rights
protections would be applied more generally to include those seeking entry to the coun-
try in question. For example, the Canadian Charter3 ‘ and the American Bill of Rights
might be applied, respectively, to the actions of Canadian and American embassies
abroad. It could be contended that the Singh case?’ does not expressly rule out the appli-
cation of the Charter to this situation. The matter, however, has not yet been litigated in
the Federal Court of Appeal’s decision that the Fifth
Canada. In the McNary case,’
Amendment of the U.S. Constitution applied to Haitians detained by the American gov-
emment at Guantanamo Bay was overruled by the Supreme Court.”‘ Even in the Court
of Appeal’s judgment, care had been taken to limit the general application of the case by
the Judge’s insistence on its “unique facts”‘ For example, these unique facts were “the
2o Nafziger, supra note 170 at 822.
2” J. Hucker, “Immigration, Natural Justice and the Bill of Rights” (1975) 13 Osgoode Hall L.J. 649
at 682. Singh v. Canada (Minister of Employment and Imnigration), [1985] 1 S.C.R. 177, 17 D.L.R.
(4th) 422 [hereinafter Singh], The Federal Court of Appeal in Re Singh and M.E.I. ((1983), 144 D.L.R.
(3d) 766, 47 N.R. 189 (Fed. C.A.))had held that judicial review of Singh’s claim to refugee status
should be refused “because the potential danger to the petitioner’s life, liberty or security of the person
could only exist in his native land and the Canadian Charter did not guarantee basic rights outside
Canada:’ (Grey, supra note 149 at 154). The Supreme Court therefore held that the Canadian Charter
applies to aliens physically present in Canada.
23 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Canadian Charter].
2 3 Supra note 23 1.
Supra note 190.
… See supra note 217 and accompanying text.
.See McNary, supra note 190 at 1340.
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interdiction of plaintiffs by United States officials, the status of the territory upon which
they are detained [the Guantanamo base is under the exclusive jurisdiction of the United
States, and American law applies there], and the ‘credible’ asylum claim they [the
screened Haitian complainants] have already been found to possess.””
In view of these
facts, the Supreme Court’s holding can be considered especially hardline.
Nafziger articulates another approach in reconsidering the concepts underlying mi-
gration law:
[The] “highest duty” of the sovereign implies a right of self-preservation. The
question remains, however: what measures are reasonable and necessary to pre-
serve the state? That question is usually ignored. Instead, the mere right of self-
preservation, together with the sovereign’s plenary authority and jurisdiction
within its territory, is said to be sufficient to justify the sovereign’s “inherent
right” or “power” to exclude aliens. In the absence, however, of something like
“vast hordes of [aliens] crowding in upon” a state, self-preservation would not
seem to be at issue, for an act of self-preservation must be limited to what is
strictly imposed by an emergency.”‘
In other words, the point of departure in matters of migration law should be what is rea-
sonably necessary for the self-preservation of the state, rather than the concept of the
state’s absolute right to exclude. Nafziger would seem to advocate exclusion only in
cases of clear necessity. The concept of self-preservation, however, is flexible. For ex-
ample, it could involve consideration of serious economic effects on the receiving state.
The concept of self-preservation is also sufficiently flexible to allow for the differential
treatment of separate categories of migrants.
On this basis, the status of one group of aliens (namely visitors), should most obvi-
ously be re-examined. The entry of visitors is currently regulated by means of the same
legislative framework as governs the entry of permanent residents. On reflection, aside
from matters of administrative ease, it would seem illogical to deal with visitors under
the same rubric as permanent residents. While providing immigrants with a right to en-
ter might be economically and socially harmful to the state, a prima facie right to enter
for visitors would not threaten the state’s security. Such a right of entry for visitors
might be seen as analogous to the right of innocent passage through the territorial sea.
According to intemational law, “innocent passage” is defined as that which does not
threaten the peace, good order or security of the coastal state.’ The same conditions
could apply to the entry of visitors. The existence of this right of innocent passage illus-
trates, in theory and in practice, that it is possible to strike a balance between sover-
eignty and competing interests, such as navigation.”
27 Ibid.
… Supra note 170 at 817 [footnotes omitted].
239 See United Nations Convention on the Law of the Sea, 10 December 1982, 516 U.N.T.S. 205
(entered into force 16 November 1994) art. 19.
“,o See Kindred, supra note 192 at 722.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
825
The facilitation of travel also might be in the state’s interest. Grey points out that,
“[m]odem society requires a great deal of international travel and it is essential to pro-
vide for the admission of large numbers of foreign residents for many purposes.’241 Such
an open-door approach has recently been taken by Australia (for which tourism is now a
major industry) and international business travel (an economic necessity). 2 “Visitors to
Australia will be granted entry when they buy airline tickets. … The Minister for Immi-
gration [announced that] … there would be no visa labels or stamps and no detailed ap-
plication forms to fill out “‘2 ” The valid interests of the state would be protected by provi-
sions which are presently in force, allowing deportation in cases where a visitor to
whom entry has been granted might threaten the public interests of the host state. It
would also be appropriate to allot visitors a certain time in the host country. ” This limi-
tation can be justified on the grounds that it reflects an inherent attribute of the status of
visitor, as compared with that of permanent resident. It would also maintain the distinc-
tion, emphasized by Grey, ‘ between visitors and those with a greater connection to the
state.
In legal terms, the distinction between different categories of entrants could be ex-
pressed by legal presumptions. The choice of a basic presumption is not neutral in terms
of the outcome of the decision that it governs. First, it determines those with the burden
of proof, i.e. either non-nationals to show they should be admitted, or the state to justify
exclusion of the persons concerned. Second, in cases of equal doubt about whether the
burden of proof has been fulfilled, the persons with the burden of proof lose their
claim.”‘
An analysis of the complex considerations which would need to be taken into ac-
count in determining which basic presumptions should be used to govern the entry of
non-nationals to a country, and the nature and extent of the exceptions to these that
should be allowed is beyond the scope of this article. However, a general presumption
of exclusion, unless certain conditions are met, may be justifiable for prospective immi-
21 Grey, supra note 149 at 17.
242 It is interesting that this change was precipitated by the unavailability of United States’ visas for
Australians wishing to visit the United States during the impasse between Congress and President
Clinton over the Budget Appropriation Bill, that shut down United States’ consulates in Australia
which issue the visas. Australians require a visa to visit the United States because Australia requires
United States’ citizens to have a visa to visit Australia, and a principle of reciprocity is applied. Conse-
quently, by easing the rules on Australian visas, the Australians eased them with respect to their ob-
taining United States’ visas.
243 “Visa System Eased” The [Adelaide] Advertiser (18 January 1996) 6. See also Editorial Opinion,
The [Adelaide] Advertiser (12 January 1996) 12.
2,, It is a further question what proof, if any, that they did not constitute a threat to the host state, it
would be reasonable to require of visitors before they would be admitted to a foreign country. For ex-
ample, identity checks and verifications of purpose would still be maintained to ensure the security of
citizens.
245 See Grey, supra note 149 at 17.
246 See M.A. Somerville, ‘The Song of Death: The Lyrics of Euthanasia” (1993) 9 J. of Contemp.
Health L. & Pol’y I at 63-67.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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by definition –
grants because –
they are asking to permanently reside in a new coun-
try.”4’ There may be particular characteristics, however, with respect to which there
should be a presumption of admissibility until the contrary is shown. We propose that
medical admissibility is one such characteristic. This will be especially important in
light of new medical diagnostic technologies, particularly genetic technologies.'” Al-
though it is also true that refugees seek permanent residence in a new country, recogni-
tion that refugees have special human rights claims that others do not have means there
should be a presumption that they should be admitted, unless conditions clearly justify-
ing their exclusion are shown to exist. In contrast to immigrants, since the presence of
visitors in a country is temporary, a rebuttable presumption of admission may be more
appropriate. Accordingly, visitors would be permitted to enter a country unless their
presence in that country would threaten peace, good order or the security of citizens. A
justification of exclusion of visitors based on self-preservation defined more precisely
would also encourage a reconsideration of the medical grounds upon which prospective
immigrants may be excluded. One example is when they are suffering from certain in-
fectious or contagious diseases.
2. Grounds for Exclusion
The pervading influence of the concept of absolute sovereignty has also resulted in
a lack of scrutiny of grounds for exclusion. For example, there has been minimal con-
sideration of what might reasonably be necessary for the self-preservation of the state in
relation to various groups of non-nationals. Recent human rights considerations, par-
ticularly the principle of non-discrimination, have also been recognized as limitations on
the scope of state action with regard to grounds of exclusion. “In racial matters, non-
discrimination has a normative character and may be adjudged a part of jus cogens.”‘..
Racial discrimination, for example, is prohibited by article 2 of the Universal Declara-
tion of Human RightsY Recourse is provided in article 7 of the Declaration concerning
the right to equal protection of the law. Both Canada and the U.S. have recognized their
obligation to the international community, in this respect, by removing the overt racial
bias that had previously formed part of their immigration laws.”‘ It is suggested that
human rights analysis should be extended to other grounds of exclusion, such as medi-
247 Thus, as matters going to rebut the presumptions of exclusion, the country in question would take
into account factors such as that certain immigrants, who have close family members in the receiving
country, may have greater claims on the receiving state.
24. See Section L.E, above.
2.9 Goodwin-Gill, supra note 159 at 85.
250 Supra note 157. Racial discrimination is also prohibited by specific declarations. See United Na-
tions Declaration on the Elimination of All Fonns of Racial Discrimination, GA Res. 1904 (XVIII),
UN GAOR, 3d Sess., Supp. No. 15, UN Doc. A/5603 (1963) 35 and the International Convention on
the Elimination of All Fonns of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 212, Can. T.S.
1970 No. 28.
2’5 For example, discrimination in the issue of visas based on race, sex, nationality, place of birth or
place of residence was outlawed in the United States by 8 U.S.C. s. 1152(a) enacted in 1965.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
827
cal inadmissibility criteria. This would mean that persons could still be determined to be
medically inadmissible, but the basis for such decisions would need to conform with
principles of human rights.
The grounds of medical exclusion provided for in Canadian and American legisla-
tion will be examined in the following analysis from two perspectives. The first consid-
ers the self-preservation of the state (which includes preservation of the life and health
of the population) and the second deals with ethical and human rights considerations. In
terms of self-preservation, a central factor should be the degree of risk posed to the state
with respect to the potential transmission of a disease, and the cost to the social infra-
structure by the entry of migrants affected by certain medical conditions. Although the
Universal Declaration of Human Rights does not protect against discrimination on the
grounds of disability, it is contended that medical exclusion should be examined ac-
cording to international principles governing discrimination. These principles are de-
scribed by Goodwin-Gill:
[D]ifferential treatment is not unlawful (1) if the distinction is made in pursuit of
a legitimate aim; (2) if the distinction does not lack an “objective justification”;
(3) provided that a reasonable proportionality exists between the means em-
ployed and the aims sought to be realized.”2
Moreover, Canadian law (which we will take as an example of such domestic law) pro-
hibits discrimination on the basis of disability.” It is suggested that both perspectives are
necessary to come to a balanced appreciation of the way in which the relationship be-
tween migrants and a receiving state should be governed from a human rights perspec-
tive with respect to exclusion on the basis of disability.
a. Exclusion of HIV-Infected People on Public Health Grounds:
The American Approach
Using the approach outlined above to justify the exclusion of HIV-infected people
on public health grounds, it would need to be shown that this action was reasonably
necessary to achieve a legitimate protection aim. The criterion of public health would be
relevant to a determination of whether there is a sufficient degree of risk to justify the
exclusion of HIV-infected individuals on the basis of state self-preservation, and to
whether discrimination on the basis of IlV infection was justified. It would seem that
the exclusion of people with HIV infection in any category of non-nationals would fail
at this first hurdle. HIV infection cannot be transmitted through casual contact, thus the
entry of an infected person poses no direct and unavoidable risk to the health of the gen-
eral public. Commenting on United States policy, the National Commission on AIDS
states:
“‘ Goodwin-Gill, supra note 159 at 78.
..3 Section 15 of the Canadian Charter, supra note 232, prohibits discrimination on the basis of
“mental or physical disability”
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The issuance on May 31, 1991, of an interim rule that extends [to HIV] the same
travel and immigration restrictions as “communicable diseases of public health
significance” that previously were classified as “dangerous contagious diseases”
defies public health knowledge. This action perpetuates the misleading and dis-
criminatory effects of prior HIV inclusion on an outdated list of diseases-4
As mentioned earlier, however, both immigrants and visitors to the U.S. continue to be
excluded on this basis. Furthermore, the American provision for discretionary waiver,
even if it were liberally employed (which it is not), does not justify excluding HIV-
infected persons on the grounds that they constitute a public health risk.
b. Exclusion of HIV-Infected People on the Grounds of an
Excessive Burden on Health and Social Services: The
Canadian Approach
The excessive demand criterion under which prospective immigrants may be ex-
cluded from Canada,”s at first glance, seems to be a reasonable restriction –
particu-
larly with reference to the huge costs of health care.” Several questions, however, may
be raised about the fairness and scope of this provision.
First, this provision does not specify particular health conditions which, if present,
will automatically disqualify an applicant. It may be argued, however, that the great
amount of attention paid to HIV infection has resulted in a discriminatory implementa-
tion of this provision in relation to persons with HIV infection. Using a modelling ap-
proach, Zowall et al. compared the direct costs to the Canadian health care system
which are posed by illnesses associated with the HIV virus and by coronary heart dis-
ease among immigrants to Canada.” They projected costs over the ten years following
entry and found that the costs attributed to immigrants with coronary heart disease
would be slightly higher than for those infected with HIV. It was therefore concluded
that in the absence of a consistent logic of exclusion (or measurement of excessive de-
mand), to single out persons with HIV infection, and not to exclude persons with dis-
eases likely to generate comparable costs, would be arbitrary and discriminatory.”
The potential arbitrariness of applying the excessive demands criterion is further in-
dicated by the fact that the precise meaning of the provision has not been defined and it
is difficult to do so. Until very recently, there also had been little research to ascertain
the precise demands that HIV-infected immigrants would, in fact, place on the Canadian
” Statement on hmnigration, supra note 79 at 1 [emphasis added].
2″ hnmigration Act, supra note 66, s. 19(1)(a)(ii).
2″ In theory, visitors are no longer excluded on this ground.
‘ See Zowall et aL, “Economic Impact of HIV Infection and Coronary Heart Disease in Immigrants
to Canada” (1992) 147 Can. Med. Assoc. J. 1163. It was assumed that immigrants with HIV would
have been recently infected, since their seropositive status would otherwise have resulted in signs or
symptoms that would have been clinically detectable. A similar assumption was made for those with
coronary heart disease.
258 See ibid.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
829
health and social services systemsY’ This lack of precise data has been recognized in the
reviews of medical inadmissibility criteria conducted by Employment and Immigration
Canada.” It would therefore seem that the probability of immigrants with HIV infection
placing an excessive demand on health and social services has simply been assumed. It
is true, however, that if one postulates a pool of “healthy” immigrants, the rejection of a
potential immigrant who has a diagnosable disease or pre-cursor of disease, in favour of
a person who does not have such a condition, is likely to mean that there will be less
demand on the health care system than if the former person became an immigrant.
The potential economic and social contribution to society of migrants with HIV in-
fection, or other diseases, must also be factored into the equation. With respect to HIV
infection, any assessment of the demand placed on services must take into account that,
Because persons with HIV infection can remain asymptomatic for ten or more
years, and during that time remain active and productive members of society, it
is not clear that all persons with HIV infection will necessarily place demands
on the health care system that are out of proportion to the benefits they may
bring to Canada.”‘
Thus, there are serious questions related to the practical implementation of the excessive
demand provision. Even if the application of this provision were better articulated and
defined, serious legal and ethical questions would still remain for deliberation. Accord-
ing to Zowall et al.,
Once such analyses are completed, important social, legal and ethical consid-
erations must then be addressed if the final policy is to reflect both the goals of
our government and the values of our society 22
Such questions relate to the extent to which governments should seek to eliminate po-
tential future economic costs through its method of selecting new immigrants. The con-
cem of a government is, of course, to prevent heavy medical costs from migration. The
Canadian government has argued that in the absence of strict medical exclusion provi-
sions, Canada’s publicly-funded health care system would become “a clinic for the
world”23 In an era of rising health care costs and the political concern for such costs,
this argument merits some attention. Moreover, this argument, of course, could be char-
acterized in terms of economic self-preservation.
There are, however, additional concerns to those of economic self-preservation
which also should be kept in mind. First, policy-makers should be aware of a possible
symbolic function of the exclusion of migrants on the ground of excessive demands on
health and social services. It implies, at one extreme, that only perfectly healthy persons
are acceptable and welcome as immigrants. This constitutes a deprecating message for
. See Jacobs, supra note 139.
26″ See Medical Inadmissibility Review, supra note 113 at 35.
2 6 HIV and Human Rights in Canada, supra note 135 at 16.
262 Zowall et aL, supra note 257 at 1170.
263 Medical Inadmissibility Review, supra note 113 at 31.
830
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ill and disabled members of our communities. Such persons, moreover, will be increas-
ingly difficult to find, as developments in molecular biology and genetic research allow
us to identify the healthy ill. ”
Second, the perception that Canada would become a “clinic for the world” appears
to be exaggerated. The medical examination is just one of a series of demanding hurdles
which applicants for resident status must pass before being accepted into Canada. The
most important of these hurdles is the points system in which applicants are assessed in
relation to work experience, skills, age and language abilities. Medical inadmissibility,
therefore, only works to exclude those applicants who would otherwise have satisfied
immigration officers of their suitability to immigrate to Canada according to other strin-
gent criteria.
It should also be noted that medical inadmissibility criteria presently apply to the
admission to Canada of persons with refugee status and to those applicants for residence
who have family within Canada. It is suggested that particularly in the former case, hu-
manitarian considerations should outweigh economic concerns, if indeed the latter
should be given any weight at all.” Moreover, from time to time one hears heart-
wrenching stories of families which include a sick or disabled child that they are seek-
ing to hide or abandon because of fear that the entire family will be rejected as immi-
grants on the basis of the medical inadmissibility of that child.
In the case of individual immigrants, it has also been argued that medical inadmis-
sibility criteria, in general, should not apply. For example, the Canadian Bar Association
(CBA), has contended that:
[S]ection 19(1)(a) of the Act “may be in contravention of the Canadian Charter
of Rights and Freedoms” on the grounds that “it is an issue whether exclusion
because of a potential danger to the public or demands on the health care system
would be considered to be ‘reasonable and demonstrably justified’.”2 M
These remarks suggest that both grounds of medical exclusion fail to meet the human
rights standards set by the Canadian Charter, and are therefore invalid. The CBA’s per-
spective is shared by the WHO which believes that medical examinations of prospective
immigrants should serve only to screen people with diseases into the receiving country’s
health care system. In other words, people should not be refused immigrant status on
medical grounds, but referred to medical services once settled in a new country. “Any
… See above at Section I.E.
2-‘ It should be noted that this would not imply an end to medical screening, in general, of refugees.
The consequences of that screening would however be different: for instance, an immigrant with a
contagious disease could be directed to treatment facilities and not excluded from Canada.
26 Medical Inadmissibility Review, supra note 113 at 39 quoting the Canadian Bar Association. The
quotation refers to section 1 of the Canadian Charter, supra note 232, according to which discrimina-
tory measures which infringe a constitutionally protected right and do not accord with “the principles
of fundamental justice”, may be upheld if they constitute “reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.”
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
831
health related restrictions on international migration … would be both discriminatory
and inhumane” 6
Therefore, it is proposed that governments should be required to justify the mainte-
in particular their compliance with ethical considerations.
nance of such restrictions –
Using potential health and social services costs alone as a sufficient basis for exclusion
of people with certain diseases has unacceptable dimensions which need to be given se-
rious consideration. For instance, such an approach would indicate an unacceptable at-
in that it views them only in terms of the eco-
titude towards migrants as persons –
nomic benefit they offer. In addition, it places only a monetary value on their worth –
in that it states that they do not merit the cost they would present to society. This runs
the risk of treating persons as objects through a process called reification. This is harm-
ful, not only to the persons directly affected, but also to the excluding state as a result of
the impact of such attitudes on the values, beliefs and symbolism that make up the
“ethical and legal tone” of the society. Arguably, that tone is best judged by how a soci-
ety treats persons who are weakest and most in need (which is often true of prospective
immigrants and always true of refugees), not those who are powerful and strong. We
need to ensure that approaches such as the points system (which function to assess pro-
spective immigrants in terms of their potential to contribute to the Canadian economy)
do not cause this wider kind of damage to Canadian society. Even from an economic
perspective, excluding people simply on the basis of potential health and social services
costs fails to recognize the contribution to the receiving state made by migration. It also
takes no account of the ability of the state to pay for care that these migrants might
need.
The scope of medical inadmissibility restrictions, therefore, should be carefully
evaluated. Evaluation should take account of different considerations relevant to the
situation of various groups of non-nationals. Such evaluation should be based on credi-
ble research and decisions taking into acount principles of human rights and human re-
sponsibility, and after weighing respect for humanitarian and ethical norms against bur-
dens on the state. Otherwise, the decisions are likely to be influenced by unstated, and
perhaps unjustified, assumptions concerning the desirability of certain persons as immi-
grants, the diseases from which they suffer, and the risks and costs which they would
present to society.
Conclusion
The discussion of HIV-related entry restrictions has indicated that they serve no use-
ful public health purpose. It can be added that they may be indirectly harmful to the
protection of public health, since they divert scarce resources from more useful initia-
267 Medical Inadmissibility Review, ibid at 30.
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tives.” In this sense, they are not cost-effective. Such laws and their enforcement may
also offend human rights standards and principles of ethics.
The stigmatisation of people living with certain feared diseases, evident in the his-
tory of responses to disease, has also been described.”9 These exclusionary responses to
disease, including HIV-related entry restrictions on the grounds of public health protec-
tion, result from our fear of certain diseases and of other threatening realities –
in par-
ticular our own mortality. The exclusions may be considered mechanisms for coping
with these fears and the loss that they threaten in a much wider context.
Based on a re-assessment of the concept of sovereignty and the extent of the state’s
right to exclude aliens, we have made several suggestions for reforming Canadian and
American entry restrictions. It has been contended that the scope of exclusionary meas-
ures should be limited with reference to humanitarian and human rights concerns, and a
consideration of what is actually necessary for the preservation of the state. For exam-
ple, it has been argued that there is a difference in the effect on the host state of the ad-
mission of visitors as compared with permanent residents, and that a presumption of ex-
clusion relating to visitors is unnecessary for the self-preservation of the state. It has
been suggested that the point of departure for the law, in relation to the entry of visitors,
should be a rebuttable presumption of a right to enter other communities. The existence
of this right would recognize the interdependence of modem states and the necessity of
travel. It would not, however, imply a right to stay in the host country.
With respect to restrictions relating to permanent residence, it has been argued that
the state may have a right to exclude, but that there might be certain limits on this right
notably in relation to the grounds on which aliens may be excluded. The importance
–
of conforming with humanitarian considerations has been particularly emphasized, and
the compatibility of medical exclusion on public health or economic grounds with hu-
man rights standards has been questioned.
The re-examination of the law of entry restrictions must take into account the social
and psychological forces which have played a primordial role in the development of
such law –
both in the past and at present. These broader considerations of the senti-
ments underlying immigration laws must inform our analysis if the function these laws
serve in Western societies is to be understood. Underlying forces include the need of
many people to respond to uncertainty and fear by distancing and disidentifying them-
selves, practically and symbolically, from the perceived source of this fear – which in
the case of HV means those who are infected. These factors have resulted in entry re-
strictions which primarily serve a symbolic function, although they are adopted on the
basis that they are needed for practical protection. This is evident in entry restrictions
placed on HIV-infected people that are based on a public health exclusion. It is also true
that the excessive burden exclusion criterion –
depending on how this is interpreted
2. See N. Gilmore et aL, “International Travel and AIDS” (1989) 3 (Supp. 1) AIDS: A Year in Re-
view S225.
.69 See also Gilmore & Somerville, supra note 25.
1998] M.A. SOMERVILLE AND S. WILSON – IMMIGRATION AND HUMAN RIGHTS
833
and applied – may reflect a powerful emotional rejection of those afflicted by a certain
disease (such as AIDS) rather than being necessary to achieve the purported purpose for
which it is used (namely avoiding health care costs).
We must ensure that the symbolism we create and hand on to future generations is
particularly in those countries like Canada and the U.S. which claim to
acceptable –
uphold human rights and are regarded as models to be emulated. This will require us to
recognize our fear and consequent disidentification from ill people, and to find ways to
re-identify with them. We can do this by keeping in mind that:
Illness is the night-side of life, a more onerous citizenship. Everyone who is
born holds dual citizenship, in the kingdom of the well and in the kingdom of
the sick. Although we all prefer to use only the good passport, sooner or later
each of us is obliged, at least for a spell, to identify ourselves as citizens of that
other place.270
In enacting entry restriction law as a symbolic response to the need to “do something”
to protect ourselves and our society from the dangers we perceive HIV infection pres-
ents, it is important to be aware that such law is not neutral and may inflict great suffer-
ing on those affected. “It is essential to ensure that any enactment or use of law fights
AIDS and its harmful effects on those affected, and not the persons affected by HLV in-
fection or AIDS”‘2 ‘ Any such laws which harm people living with HIV or AIDS can
also be counter-productive in reducing the spread of HIV infection. They can alienate
those infected and could make them less open to taking care to protect others, while
falsely reassuring those who are not infected. This could also place these persons at
greater risk of becoming infected.”‘
While this type of exclusionary law and the symbolism it entails is a reflection of
our society, it should be recognized that the acceptance of such measures will also form
the “ethical and legal tone” of our society. The acceptance of wrongfully discriminatory
provisions in immigration laws shows an intolerance of certain people in times of “cri-
sis”. This intolerance indicates the degree to which the rights of certain, often stigma-
tised, groups of people may be suspended at times of a perceived challenge to the well-
being of society. The general unwillingness to treat the human rights of aliens with the
same respect as those of citizens indicates that, despite increased emphasis on the global
community, the physical boundaries constituted by national frontiers remain significant
mental boundaries in relation to how we consider our fellow human beings should be
treated –
and how we do treat them.
In affluent countries, HIV infection and AIDS has presented a real challenge in a
form we do not often face: whether we would accept some additional perceived risk in
order to respect the human rights of infected members of society, and of those who seek
to become members. A refusal to do so would lead to the devaluation of the importance
… S. Sontag, Illness as Metaphor and AIDS and Its Metaphors (New York: Doubleday, 1988) at 3.
271 “Law as an ‘Art Form”‘, supra note 55 at 291.
272 See ibid. at 296.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
of human rights in these societies.” ‘ This has important implications. Nafziger, for ex-
ample, points out that, “mindless acceptance of the concept of a state’s exclusive juris-
diction inhibits the growth of international cooperation and law-making in response to
intrinsically international, and important, issues of migration ” ‘ At a time when migra-
tion is increasing, and has become a very important political issue, it is hoped that the
concerns we have raised will be addressed, because:
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whomn I was like to give offence.
Something there is that doesn’t love a wall,
That wants it down.
The Poems of Robert Frost
The Modern Library, New York, 1946
Afterword
This article deals entirely with the exclusion from entry into a country of non-
nationals on the basis of their illness or disability. Just as it was completed, a report ap-
peared in the New England Journal of Medicine, entitled, “Self-mutilation and Malin-
gering Among Cuban Migrants Detained at Guantanamo Bay.”2 The report described
cases in which persons injected foreign substances into themselves, inflicted major
bums with molten plastic, and ingested various foreign bodies. As the authors state,
“[t]hese cases illustrate graphically how Cuban migrants attempted
to use self-
mutilation and malingering to gain entry to the United States.”” Serious accident cases
at Guantanamo Bay had been medically evacuated to the U.S. for medical treatment
which was unavailable locally. The accident victims were not subsequently deported
from the U.S. In stark contrast to the cases dealt with in this article, this was a situation
in which illness and medical need provided the basis for entry as an immigrant to the
U.S. which others sought to use regardless of the terrible costs in pain, suffering and
permanent injury, to themselves. If nothing else, this horrifying example should bring
home to us the extraordinary depths of despair and desperation of some would-be im-
migrants.
273 This may be particularly evident in Western Europe, at present, since large numbers of refugees
have been arriving there after fleeing the war in Yugoslavia and the economic problems of Eastern
Europe and North Africa. The effect of this migration on societal values is exemplified by the behav-
iour, amongst others, of “politicians who, instead of confronting a rising tide of xenophobia, capitalise
on it, by warning of a ‘foreign invasion.”‘ (Eyal, supra note 161).
27 Nafziger, supra note 170 at 822.
275 T.C. Andrews et al., “Self-mutilation and Malingering Among Cuban Migrants Detained at
Guantanamo Bay” (1997) 336 New Engl. J. Med. 1251.
“6Ibid. at 1252.
