Nico’s Amendment: Changes to immigration laws expected to address discrimination against applicants with disabilities

  • June 4, 2021
  • BakerLaw

The Federal government has announced it will be changing the current discriminatory immigration laws which create an additional hurdle for migrants with disabilities and illnesses.

The change arises from Felipe Montoya’s personal experience navigating the discriminatory immigration rules. Mr. Montoya came to Canada in 2012 under a work permit for a tenured position at York University in the faculty of environmental studies.  After applying for permanent residence, he was informed that his family was inadmissible. Mr. Montoya’s son, Nicolas (“Nico”) has Down Syndrome. According to the “medically inadmissibility rule”, it was presumed that Nico’s disability would place an excessive burden on the social services system.  In order to rebut this presumption, the family had to submit a “reasonable and workable plan” to show they could offset the anticipated excessive costs.

In 2020, it was estimated that the average Canadian would cost the health and social services system approximately $21,000 on a per capita basis. The “medical inadmissibility rule” applies where it is presumed that a migrant has a health condition which is estimated to cost more than the yearly estimated average. This was the case for Mr. Montoya’s son.

This rule disproportionately impacts immigrant applicants with disabilities. Mr. Montoya spoke to the media about the adverse impact his son experienced as a result of the “medically inadmissibility rule”. The Immigration Minister’s office sought a meeting with Mr. Montoya to discuss the matter.  The government committed to making changes to the regulations so as to be more inclusive.

The story has a happy ending for Mr. Montoya and his family. They were offered a humanitarian and compassionate exemption for their permanent residence.

The Federal government temporarily changed the medical inadmissibility rules by raising the excessive demand cost threshold. While the rule still exists and could still adversely impact persons with disabilities, the change is a step in the right direction. The regulatory change has been dubbed “Nico’s Amendment” after Mr. Montoya’s son.

You can read more about Mr. Montoya’s story here (link).

If you experienced discrimination on the basis of disability, contact us (link) to see how we can help you. Check out our website for more information on the legal services we offer (link), and the clients we have represented (link). 

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