Managing your health: a guide for people living with HIV
17. Immigrants, refugees and non-status people with HIV
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The Canadian immigration and refugee system can be complex, confusing and intimidating for newcomers, especially when they are not sure how their HIV status may affect their chances of becoming Canadian citizens.
This chapter provides basic information about the Canadian immigration and refugee system and how it affects people with HIV from other countries. It describes mandatory HIV testing for immigrants, services for people going through the immigration process, and information on how some communities have dealt with the challenges that immigrant, refugee and non-status people with HIV face.
The Canadian immigration system and HIV
Immigrants and refugees represent an increasing proportion of people living with HIV in Canada. This points to the need for equitable services in prevention education, treatment and support for immigrants and refugees infected and affected by HIV.
Immigrants and refugees with HIV face complex demands: the trauma and challenges of the migration journey, the complex and confusing Canadian immigration and refugee system, the challenges of adapting to a new culture and lifestyle, difficulties with access to housing and employment and stigma, and discrimination in their own ethno-racial communities and in larger society. They also face barriers in accessing HIV-related information, treatment and support related to language and culture, health literacy and systemic discrimination. All these demands and barriers have a significant impact on their health, well-being and ability to participate as equal members of society.
The Canadian immigration system is not only complex and confusing, it is very intimidating for newcomers to deal with. People with HIV have tremendous fear and concerns about possible exclusion because HIV testing is a mandatory part of all newcomer applications.
People can become a resident of Canada through one of two major routes:
- by applying as an immigrant;
- by filing a claim as a refugee.
The processes for application and the criteria for acceptance are very different for immigrant and refugee applicants. How HIV status may affect the outcome is also different. In addition, different categories of immigrant/refugee applicants have different entitlement to benefits and service access.
Immigrants, refugees and non-status people
Immigrant applications can be divided into two categories: sponsored immigrant Family Class or independent immigrant applicants.
- Sponsored immigrant Family Class can include any family members of someone who is already a Canadian citizen. This includes family members by birth or adoption; however, some are given higher priority than others. In general, first-degree relatives—spouse, common-law partner and dependent children—are given the highest priority.
- The applications for independent immigrants are evaluated by a point system based on various criteria, such as their education, profession, language ability and relationship to Canadians. Independent immigrants include a whole range of applicants, including skilled workers, entrepreneurs and investors. In addition, there are other special programs of sponsored immigrants, such as a program for live-in caregivers.
Refugees are divided into two broad groups. A refugee claimant can apply either as a Convention refugee or as a person in need of protection.
- A Convention refugee is a person who has a well-founded fear of persecution based on race, religion, political opinion, nationality or membership within a particular social group. Social group can include communities based on sexual orientation, victims of domestic violence or transgendered people.
- A person in need of protection is a person who has a well-founded fear of torture or unusually cruel treatment or risk to life in his or her country of origin. These fears do not have to be related to any specific groups as listed above. However, you cannot apply as a refugee due to “risk of life in your country of origin” solely because your home country cannot provide adequate medical care.
This term is often used to describe many different kinds of people who do not have valid or full legal status in Canada. These are people who might otherwise be referred to as illegal immigrants. However, the term non-status people is often preferred to illegal immigrants since illegal adds stigma and implies criminality, when, in fact, most of these people have actually had some form of status in Canada at some point.
Non-status people can include:
- people who came to Canada with a legal visa that has since expired;
- people who applied for immigrant or refugee status, but were rejected and have not left the country;
- people who came as visitors and decided to stay without extending their visa or applying for formal status;
- people whose immigration or refugee applications are in limbo for a variety of administrative reasons.
Whether non-status people can access any public services or assistance will depend on the specific situation they are in.
Immigration and HIV testing
Citizenship and Immigration Canada requires a medical exam for all immigrants and refugees. Since January 2002, HIV testing has been a mandatory part of the immigration examination for everyone over the age of 15. You will also be tested for HIV if you are under 15 but have an HIV-positive parent, have received blood or blood products or are going to be adopted in Canada.
On most applications for status in Canada, you will be asked if you have any serious illnesses. If you say no, and Citizenship and Immigration Canada later finds out that this was not true, you could be removed from Canada.
Grounds for refusal: Who will be rejected?
People who are considered inadmissible will not be allowed to come into or stay in Canada. People will be considered inadmissible if they are a danger to public health or safety, such as people with a criminal record or with certain contagious diseases, such as tuberculosis.
HIV is not considered to be a danger to public health and safety. Therefore, having HIV does not, in itself, make you inadmissible to Canada.
However, people are also considered medically inadmissible if they are expected to place an excessive demand on health and/or social services compared to the average Canadian. Many people with HIV may be considered individuals of excessive demand, due to the high cost of anti-HIV drugs. Costs are estimated over a 10-year projected period, which increases the likelihood that someone with HIV will start on anti-HIV drugs and incur the associated costs during that time period.
Exemptions from medical inadmissibility
Some applicants are exempted from the excessive demand criteria. These include:
- eligible refugee claimants and persons in need of protection;
- sponsored immigrant applicants who are the spouse, common-law or conjugal partner of a Canadian resident;
- dependent children (under 22 years of age and single) of a Canadian resident.
The excessive demand rule will not apply to people in these categories. In other words, they are not considered medically inadmissible and may still be eligible for admission to Canada regardless of the costs they might place on the health and social system.
A spouse can be of the same or the opposite sex. Partners can be of the same or the opposite sex, and include common-law partners who have lived together in a relationship for more than a year, and conjugal partners who have been in a relationship for more than a year, but who live in different countries.
Visitors, students and people on work visas
A medical exam, including an HIV test, is needed in order to obtain a visa for people who:
- apply to come to Canada to work or study or as a visitor and who plan to stay in Canada for more than six months;
- have spent more than six months of the preceding year in a designated country (a country that has a higher incidence of serious communicable diseases than Canada).
Citizenship and Immigration Canada (CIC) keeps a list of designated countries on its Web site at: http://www.cic.gc.ca/english/information/medical/dcl.asp.
Visitors or people applying for study or work visas who test HIV-positive may be rejected on the ground of medical inadmissibility. Visitors who intend to stay for less than six months, or who are coming from a country not on the designated country list, will probably not need to have a medical examination.
Services available to immigrants, refugees and non-status people with HIV
Access to medical care
Access to medical care depends on your status in Canada. For refugee applicants, if you have filed a refugee claim and received an acknowledgement of the claim from Citizenship and Immigration Canada, you can get medical care through the Interim Federal Health program. The Interim Federal Health program is paid for by the federal government and will cover emergency and essential health services, including birth control, prenatal and obstetrical care, medications and emergency dental services. It will also cover the cost of the immigration medical examination.
The Interim Federal Health program is only available to people applying for refugee status as a Convention refugee or as a person in need of protection. It is not available to people applying as an immigrant. It is also not available to a visitor, student or people on work visas. The Interim Federal Health coverage usually has an expiry date and you will need to apply for renewal before it expires. You will be eligible to reapply for coverage under Interim Federal Health for as long as your refugee claim is still in progress. This includes the stages of judicial appeal after a failed claim. See Chapter 20, Money matters, for more information on the Interim Federal Health program.
If your refugee claim is successful, you will then be eligible to apply for healthcare coverage under your provincial health insurance plan. The provincial health insurance plan should cover the costs of all health services, including medical tests, but not necessarily the cost of all drugs. In some provinces, there may be a three-month waiting period before new applicants can get coverage through the provincial health plan (see Chapter 19, Access to treatment).
If you are applying as an immigrant, student or visitor, you will not be eligible for either the Interim Federal Health program or provincial healthcare coverage. You will need to pay for health services and drugs either through private insurance or out of your own pocket. Some categories of workers who are admitted to Canada on work permits may be eligible for provincial health coverage. In some provinces, government-funded community health centres or health service organizations will provide free medical services to people without healthcare coverage. However, these agencies often have very limited resources and very specific criteria as to who can use these services. Your local AIDS service organization may be able to direct you to health services in your area if you are not eligible for government health insurance coverage.
Access to anti-HIV drugs
Access to anti-HIV drugs will depend on your status in Canada.
- For refugee applicants, the Interim Federal Health program will cover all needed anti-HIV drugs.
- If you are applying as an independent or sponsored immigrant, student, worker or visitor, you will not be eligible for coverage for anti-HIV drugs and will need to get drugs through private insurance, or pay for them out of your pocket.
- If you are getting government social assistance or disability benefits, your drugs will be covered. These benefits may be available to applicants who have a temporary resident permit, or who apply for status on humanitarian and compassionate basis.
Sometimes, when your immigration status changes, your ability to get access to anti-HIV drugs will be disrupted. This disruption can happen for a variety of reasons during your immigration or refugee application process. This could happen, for example, in the period when you are waiting for your refugee claim to be acknowledged but before the Interim Federal Health program coverage starts, or after you have become a landed immigrant but while you are waiting for the province to provide coverage.
Since disruption of anti-HIV drugs can cause drug resistance and treatment failure, please talk to your healthcare providers and counsellors to try to get a continuing supply of your drugs before you start treatment. Try to plan ahead if you know that your status or coverage for drugs may be changing. Your healthcare providers and local AIDS service organizations may know of ways to get a short-term supply of drugs to help you get through those transition periods.
Compassionate access to anti-HIV drugs
Many pharmaceutical (drug) companies will consider providing a short-term, free supply of drugs on compassionate grounds to people who need them. This usually requires a formal letter of request from your doctor. Typically, the letter must explain why you need short-term free drugs, and an assurance that you will have some form of long-term coverage within a reasonable amount of time (usually less than six months to one year). The drug company will likely only supply the drugs one month at a time and your doctor will need to renew the request monthly.
For more information about compassionate access, see Chapter 19, Access to treatment.
Proper legal support is one of the most important factors affecting the outcome of your immigration application. A good lawyer should spend the time to explain your options, provide you with information to help you decide which option to apply for, help you with documents, interviews and hearings, and review your options if you encounter difficulties or rejection during the application process. Your immigration lawyer should give you an estimate of his or her fees, a clear explanation of what services the fees cover, and let you know if he or she would accept payment through legal aid.
As a person with HIV, it is important, if possible, to find an immigration lawyer with special knowledge and experience with HIV-related immigration policies. You will also need a lawyer you can feel comfortable with and trust in order to disclose your full situation, including HIV status. To help yourself find a good, HIV-knowledgeable immigration lawyer, you can try contacting your local AIDS service organization (or, in Ontario, special HIV legal clinics), for references. It is also helpful to ask other people with HIV, especially those from your own ethno-racial background or your country of origin. Try to find out the experiences they have had with specific immigration lawyers in dealing with their cases.
There are different ways of getting legal services if you cannot pay for them. You can apply for legal aid through provincial legal aid agencies, or you can try to access legal help through community-based legal clinics.
You can apply for legal aid even if you do not have any status in Canada. Legal aid may provide you with financial assistance to pay for the service of a lawyer, but you will need to go to a legal aid office and make an application in writing. They will ask you a lot of questions, so call first to find out what you need to take. Legal aid will assess your financial situation and the nature of your legal matter in order to decide whether they will give you a legal aid certificate. If you are given a legal aid certificate, you will be able to hire a lawyer who will bill legal aid for the services.
If you are worried about being personally identified by applying to legal aid, you can try calling some of the community legal clinics first and get some advice over the phone.
Alan Li would like to thank
Michael Battista, Avvy Go, Maureen Owino, Geraldine Sadoway, Derek Thaczuk and Josephine Wong for assisting with resource information, feedback and editing.
Treat HIV Globally – Multilingual treatment information
Citizen and Immigration Canada – Information about refugee assistance programs. (For a list of designated countries for immigration medical examinations see www.cic.gc.ca/english/information/medical/dcl.asp)
Canadian HIV/AIDS Legal Network – Legal information related to HIV and immigration
Committee for Accessible AIDS Treatment – Treatment access related to immigrant, refugee and non-status people with HIV
Most of these and other relevant resources can be accessed through the CATIE Ordering Centre or by calling CATIE at 1-800-263-1638.