February 5, 2015
Federal Court of Appeal Considers Refugee Health Care
The Canadian Federal Court of Appeal is currently considering an appeal of the seminal decision in Canadian Doctors for Refugee Care v. Attorney General of Canada and Minister of Citizenship and Immigration (2014) FC 651 (Canadian Doctors). In 2014, Justice Mactavish of the Federal Court of Canada found that the 2012 changes to the Interim Federal Health Care Program (IFHP) were unconstitutional.
By way of background, the Canadian government introduced significant changes to the IFHP in 2012. The revised IFHP created different tiers of coverage based on an individual’s position in the refugee process. Resettled refugees, who are selected from abroad, for instance, did not have their health care provision altered. Asylum seekers received however only “urgent or essential health care.” Asylum seekers from countries of origin which the government designates as generally safe received no health care coverage unless their condition posed a danger to public health or public safety. Individuals ineligible to make refugee claims all together received no coverage at all.
In July 2014, the Federal Court of Canada found that the IFHP denies certain asylum seekers state-funded basic health care and is cruel and unusual treatment under section 12 of the Canadian Charter of Rights and Freedom (Charter). Section 12 states provides that “(e)veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”
The Court also found that the IFHP’s deprivation of insured health care forrefugee claimants from countries on the list of ‘safe countries of origin’ was discrimination based on national origin. Discrimination on the basis of national origin is a stipulated ground in section 15(1) of the Charter which state provides that “(e)very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
One of the stipulated drivers behind this decision was the government’s desire to contain costs. In 2012, the Minister’s spokesperson explained the changes in the following terms:
“Canadians have been clear that they do not want illegal immigrants and bogus refugee claimants receiving gold-plated health care benefits that are better than those Canadian taxpayers receive. Our Government has listened and acted.”
Canada is not alone in pushing forward such an agenda. Countries are limiting the health care rights of asylum seekers by reference to commonly stated goals of deterring health tourism and avoiding undue strain on finite health care resources. However, this rhetoric is often unsupported by concrete evidence.
Commenting on the government’s cost-containment rationale, Justice Mactavish stated:
There is… no reliable evidence… of the extent to which the 2012 changes to the IFHP will, on their own, result in cost savings at the federal level. Moreover,… it appears that some of the cost of medical services that was previously covered under the IFHP has now simply been downloaded to the provinces.
Assuming, however, that the 2012 changes to the IFHP have indeed resulted in some measure of cost savings at the federal level, are there ways that this cost savings could be achieved in a less infringing manner, keeping in mind that this alternative measure does not have to satisfy the objective of cost containment to exactly the same extent or degree? (paras. 1012-1013)
The limited empirical evidence which does exist on this issue suggests a lack of evidence to support the cost-containment argument. It is unclear whether there is a significant number of individuals who come to Canada to seek asylum for health related reasons. Evidence on HIV asylum claimants in the UK context, for example, suggests that asylum claimants do not seek treatment until long after arrival.
The decision of the Federal Court of Appeal is highly anticipated in this case.
For more information on claiming refugee protection, please click here.