Health Coverage for Refugees

Health Coverage for Refugees

Health Coverage for Refugees 1

Interim Federal Health Programme (IFHP)In Canada, the provision of basic health care for refugees and refugee claimants is regulated by the Interim Federal Health Programme (IFHP) before they are covered by provincial or territorial health insurance plans. The IFHP was introduced through an Order-in-Council by the federal government in 1957 and has been managed by Citizenship and Immigration Canada since 1995. Prior to June 2012, the IFHP provided refugees and asylum seekers with basic health care coverage as well as supplemental coverage including access to medication, dentistry, and vision care. Those whose application for refugee status were denied retained coverage until they were deported. 2012 ReformThe Canadian government introduced a series of changes in April 2012, which came into effect on June 30, 2012. As of June 30, 2012, IFHP divides asylum seekers into three categories with differing levels of health coverage depending upon the person's country of origin. There are now three baskets of services: (1) expanded health care coverage, (2) health care coverage, and (3) public health or public safety health care coverage. If the refugee claimant is from a designated country of origin, they will receive "very limited" health coverage. Some of the provinces have stepped in to cover services and medication no longer provided under the IFHP. ControversyGovernment rationaleIn defending the changes, the government explained its rationale as being to ensure equality between the health care received by refugees and that afforded to Canadians such that refugees would not receive superior benefits. Former Citizenship and Immigration Minister Jason Kenney emphasized the generosity of Canadians and Canada's immigration system, stating that the government did "not want to ask Canadians to pay for benefits for protected persons and refugee claimants that are more generous than what they are entitled to themselves." In a related case, Nell Toussaint v. Attorney General of Canada, the Supreme Court cautioned that by extending universal health care regardless of immigration status, Canada "could become a health-care safe haven". The government also made cost and deterrence arguments in favour of reforming the legislation. These changes were estimated to save 100 million dollars over five years. The government argued that the cuts would deter claimants who are drawn to the country for its health care. Public criticismCritics of the 2012 reforms include the Canadian Medical Association Journal and the Canadian Paediatric Society. The heads of eight major professional associations including nurses, social workers, and physicians signed a letter opposing the cuts, demanding that pre-2012 refugee health provision be restored. These advocates argue that the differential treatment of refugees and refugee applicants depending on their country of origin is discriminatory. Ontario's Health Minister Deb Matthews called for the changes to be reversed stating that "this policy change will create a class system for health care in Canada." IFHP Legal ChallengeConstitutional Law Principle: Section 15 Equality ProvisionThe Canadian Charter of Rights and Freedoms does not include any express protection of the right to health, but this right has been protected indirectly by Courts through the use of other provisions, such as the section 15 equality guarantee. Section 15(1) provides that "every 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. It requires that the court satisfy two conditions: (1) the law creates a distinction based on an analogous or enumerated ground (2) the distinction creates a disadvantage by perpetuating prejudice or stereotyping. Nell Toussaint v. Attorney GeneralPrior to the 2012 reforms, in Nell Toussaint v Attorney General, Toussaint challenged the constitutionality of the IFHP on the basis of the proposed analogous grounds of disability and citizenship. The Court found neither of these grounds to be applicable to the claimant in question, but made a point of leaving open the question as to whether immigration status could be an analogous ground. If found to be an analogous ground, the applicant's exclusion from IFHP coverage could have been in violation of section 15(1) of the Charter. The Canadian Civil Liberties Association, in its intervenor factum, drew a comparison between immigration status and non-citizens. A number of cases have recognized that non-citizens, which capture many different types of immigration statuses, constitute an analogous ground under section 15(1). For example, in Andrews v. Law Society of British Columbia, the Court held that citizenship is an analogous ground since it was a personal characteristic "typically not within the control of the individual, and in this sense, is immutable." In Lavoie v. Canada, the Court held that "non-citizens suffer from political marginalization, stereotyping and historical disadvantage." Current Challenge Before the CourtsIn December 2013, the Canadian Doctors for Refugee Care (CDRC) and the Canadian Association of Refugee Lawyers (CARL) brought a challenge to the Federal Court of Canada claiming that the government's cuts to refugee health care were unconstitutional. Specifically, CARL proposes that both "country of origin" and "immigration status" are discriminatory grounds under section 15(1) of the Charter. Other Charter IssuesThe right to health has been litigated under Charter provisions outside of section 15. The current CDRC/CARL challenge to the IFHP reforms is founded on two additional Charter provisions: (1) the right to life and security of the person under section 7; and (2)the right not to be subjected to cruel and unusual treatment under section 12.

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