The Law, Policy, and Ethics of Migrants' Health Care Entitlement

The Law, Policy, and Ethics of Migrants’ Health Care Entitlement

Yin-Yuan Brandon Chen

A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto

The Law, Policy, and Ethics of Migrants’ Health Care Entitlement

Yin-Yuan Brandon Chen

Doctor of Juridical Science

Faculty of Law University of Toronto

2020 Abstract

This dissertation examines laws and policies in Western receiving countries concerning migrants’ health care entitlement and queries their defensibility. Using Canada as a case study and drawing international comparisons where appropriate, it is shown that Western receiving countries often provide migrants with a level of health care coverage inferior to what is bestowed on their respective citizens. Proponents of such unequal health care entitlement between migrants and receiving-country citizens have commonly rationalized it as a measure to reduce public spending and to deter immigration-related fraud. Available evidence, however, challenges the validity of these claims. Instead, migrants’ lesser health care entitlement is more appropriately understood as a product of their social exclusion in receiving societies.

To characterize all migrants as “others” fails to appreciate the reality that certain migrants constitute rightful members of receiving communities according to the theory of social membership. Like their citizen counterparts, migrants who are ordinarily resident and those whose establishment of ordinary residence can be confidently foretold are closely linked to

Western receiving countries given their communal affiliations, involvement in social cooperation, self-identification, and subjection to the relevant state’s coercive authority. As their members, Western countries ought to afford these migrants the same extent of health care entitlement as they do their citizens in order to satisfy the dictates of equality and reciprocity. ii

In contrast, differential health care entitlement between citizens of Western receiving countries and migrants whose residence therein is not ordinary in nature is morally permissible. In a world that largely depends on broad-based, ongoing resource redistribution within each nation to realize individuals’ right to health care, membership in these political communities is key to generating the solidarity needed to sustain such communal resource sharing. The inclusion of migrants who are not members of receiving societies in these redistributive processes raises concerns about illegitimacy. Nevertheless, given their territorial presence, pursuant to the principles of causation and remedial capacity, even non-member migrants should be entitled to a basic set of health care rights in Western receiving countries, including, at minimum, coverage for primary care and provision of medical treatment that cannot be deferred.

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Acknowledgments

This project is a long time in the making, too long in fact by all measures. Fortunately, I am surrounded by people who have shown me a great deal of patience along the way, to whom I now owe a debt of gratitude. In particular, I must thank my supervisor, Colleen M. Flood, and the members of my doctoral committee, Audrey Macklin and Mariana Mota Prado, for their incredible generosity with their time and expertise. Their willingness to indulge my half-baked ideas created a safe space for my arguments to mature, and their confidence in my ability to do better gave me the motivation I needed to bring my vision for this dissertation to life. Similarly, I must thank my thesis examiners, Constance MacIntosh and Trudo Lemmens, whose invaluable comments and suggestions have greatly improved my work.

I am also indebted to my family. Not only is my family the source of my emotional support, especially in the lonely days of dissertation writing, but also in many ways, my family’s immigration story was what sowed the seeds of this research. I would not have been the person I am today without all the sacrifices my parents have made as immigrants. This dissertation, therefore, is dedicated to them.

Another person that I absolutely must thank is my better half, Marc. Perhaps more than anyone, he bore the brunt of my mood swings throughout my doctoral study. Yet he has stood by me every step of the way. His companionship and unconditional love fill my heart with joy, and they are what propel me forward on occasions where I find myself overcome with self-doubt. I could not have asked for a better partner in life.

Finally, I wish to acknowledge the Vanier Canada Graduate Scholarships Program, the Canadian Institutes of Health Research, the University of Toronto, and the Lupina Foundation for their generous funding support. And to everyone else who has ever contributed to my personal and professional development: thank you from the bottom of my heart!

Table of Contents

Acknowledgments...... iv

Table of Contents ...... v

List of Tables ...... ix

List of Figures ...... x

Chapter 1 Introduction: The Nuts and Bolts of a Study on Migrants’ Health Care Entitlement ...... 1

1.1 Impetus for Research ...... 1

1.2 Design of the Project ...... 5

1.2.1 Methods...... 5

1.2.2 Scope ...... 7

1.2.3 Normative Assumptions...... 11

1.3 Outline of Chapters ...... 19

Chapter 2 Mapping Inequality: Health Care Entitlement of Migrants and Citizens ...... 22

2.1 Introduction ...... 22

2.2 Overview of the Canadian Health Care System ...... 24

2.3 Summary of International Migrants’ Current Health Care Entitlement ...... 27

2.3.1 Health-Related Immigration Controls...... 29

2.3.1.1 Medical Inadmissibility ...... 29

2.3.1.2 Lawful Presence Requirements ...... 32

2.3.2 Gaps in Provincial Health Care Coverage ...... 37

2.3.2.1 Permanent Residents ...... 39

2.3.2.2 Temporary Foreign Workers ...... 41

2.3.2.3 International Students ...... 46

2.3.2.4 Asylum Seekers and Other Humanitarian Migrants without Permanent Resident Status ...... 49

2.4 Retrenchment of Migrant Health Care Entitlement in Recent Decades ...... 58 v

2.4.1 Ontario’s Medicare Reform ...... 60

2.4.2 Asylum Seekers’ Exclusion from Medicare ...... 65

2.4.3 Similar Policy Developments in Other Western Democracies ...... 69

2.5 Conclusion ...... 75

Chapter 3 Contextualizing Inequality: Neoliberal Underpinning of Contemporary Migrant Health Care Policies ...... 77

3.1 Introduction ...... 77

3.2 Making of a Global Neoliberal Hegemony ...... 79

3.2.1 Postwar Keynesian Welfare State ...... 79

3.2.2 Neoliberalism’s Rise to Dominance ...... 82

3.2.2.1 Neoliberalism in a Nutshell ...... 82

3.2.2.2 Constructing a Global Neoliberal Order ...... 84

3.3 Neoliberalization of Health Care ...... 90

3.3.1 Private Sector Participation in Health Care ...... 90

3.3.2 Health Services Commodification and International Trade...... 95

3.4 Neoliberalization of the Immigration System ...... 98

3.4.1 Economic Utility of Immigration...... 98

3.4.1.1 Prioritization of Economic Immigrants ...... 100

3.4.1.2 Rise of Temporary Residence Programs ...... 104

3.4.2 Neoliberalism and Anti-Immigrant Sentiment...... 109

3.5 Neoliberalization at the Intersection of Health Care and International Migration ...... 113

3.6 Conclusion ...... 121

Chapter 4 Dissecting the Opposition: Problems with Cost-Saving and Fraud-Deterrence Claims ...... 124

4.1 Introduction ...... 124

4.2 Empirical Problems of Prevailing Objections to Migrant Health Care Entitlement ...... 125

4.2.1 Migrant Health Care Disentitlement and Public Spending ...... 127 vi

4.2.2 Migrant Health Care Disentitlement and Immigration Control ...... 137

4.3 Prevailing Objections to Migrants’ Health Care Entitlement and Social Exclusion ...... 140

4.3.1 Uneven Impact of Cost-Saving and Fraud-Deterrence Claims ...... 141

4.3.2 An Overview of Social Exclusion...... 144

4.3.3 Prevailing Objections to Migrants’ Health Care Entitlement as Sustenance for and Outcome of Social Exclusion ...... 148

4.4 Conclusion ...... 153

Chapter 5 Constituting Members: Equal Health Care Entitlement for Ordinarily Resident Migrants ...... 154

5.1 Introduction ...... 154

5.2 The Importance of Membership in Determining Health Care Entitlement ...... 158

5.2.1 Societal Membership and Solidarity ...... 163

5.2.2 Societal Membership and Boundary Setting...... 168

5.3 Theorizing Societal Membership ...... 172

5.3.1 Membership as Citizenship ...... 173

5.3.1.1 Citizenship as Legal Recognition of Societal Membership ...... 174

5.3.1.2 Indicators of Societal Membership ...... 176

5.3.1.3 Under-Inclusiveness of Citizenship Status ...... 181

5.3.2 Membership as Territorial Presence ...... 184

5.3.2.1 Problems with Ethical Territoriality from the View of Societal Membership ...... 184

5.3.2.2 Problems with Ethical Territoriality from the View of Global Solidarity ...... 187

5.3.2.3 Differences between Universal and Communal Rights...... 190

5.3.3 Membership as Ordinary Residence ...... 192

5.3.4 Membership Interests of Would-Be Ordinarily Resident Migrants ...... 199

5.4 Injustice of Under-Inclusive Health Care Entitlement ...... 204

5.4.1 Inequality ...... 205 vii

5.4.2 Lack of Reciprocity...... 207

5.5 Conclusion ...... 208

Chapter 6 Beyond Membership: Revisiting the Moral Significance of “Being Here” for Migrant Health Care ...... 213

6.1 Introduction ...... 213

6.2 Health Care for Non-Member Migrants Based on the Causation Principle ...... 217

6.2.1 Miller’s Connection Theory ...... 217

6.2.2 Applying the Causation Principle in Health Care Context ...... 220

6.2.3 Outer Boundaries of the Causation Principle in Distributing Health Care Responsibilities ...... 227

6.2.3.1 Denial of Health Care as a Cause of Harm ...... 228

6.2.3.2 Contribution to a Harmful Global Institutional Order ...... 230

6.3 Health Care for Non-Member Migrants Based on the Capacity Principle ...... 234

6.3.1 Overview of the Capacity Principle ...... 234

6.3.2 Applying the Capacity Principle in Health Care Context ...... 236

6.4 Conclusion ...... 240

Chapter 7 Conclusion ...... 244

7.1 Summary of Arguments and Implications ...... 244

7.2 Directions of Future Research ...... 252

7.2.1 Relationship Between Border Control and Migrant Health Care Entitlement ....252

7.2.2 Potential Barriers to Actualizing Migrants’ Health Care Entitlement ...... 255

7.2.3 Cultivating Solidarity with International Migrants ...... 257

Bibliography ...... 260

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List of Tables

Table 2.1. Rules Respecting Temporary Foreign Workers’ Medicare Coverage in Canada ...... 43

Table 2.2. Rules Respecting International Students’ Medicare Coverage in Canada...... 47

Table 2.3. Health Care Coverage under IFHP between June 30, 2012 and November 4, 2014 ... 51

Table 2.4. Health Care Coverage under IFHP between November 5, 2014 and April 1, 2016 .... 54

Table 3.1. Summary of Foreign Nationals’ Medicare Coverage in Canada ...... 119

List of Figures

Figure 2.1. Number of Migrants Admitted into Canada as Permanent Residents versus Number of Temporary Resident Permits Issued Annually, 1998 – 2017 ...... 38

Figure 3.1. Percentage Distribution of New Canadian Permanent Residents by Principal Applicants’ Entry Category by Year, 1986 – 2015...... 101

Chapter 1 Introduction: The Nuts and Bolts of a Study on Migrants’ Health Care Entitlement 1.1 Impetus for Research

Today, nearly all Western industrial countries boast some programs that expressly aim to extend health care coverage to their populations at large.1 Although such programs are commonly styled “universal” in light of their population-wide scope, their universe in fact regularly leaves out many of the 146 million international migrants living in the Western receiving states.2 Similar struggle also faces international migrants in the U.S., which has historically been an outlier among Western nations given its lack of a so-called universal health care regime. To the extent that some health care benefits are made publicly available by governments in the U.S., a good number of international migrants are excluded therefrom, particularly if they are recent arrivals or are in the country without authorization.3

The human toll of such denial of public health care coverage to migrants is well documented.

Take the story of Adankwo Okoye as an example.4 Originally from Nigeria, Okoye immigrated to Ontario, Canada in 2010 after having spent over a decade in the Netherlands. She was thirty- nine years old when she arrived in Ontario and was in her third trimester of pregnancy with gestational diabetes. Cognizant of the risk associated with her pregnancy, Okoye immediately applied for publicly-funded health care coverage under the Ontario Health Insurance Plan. However, she was surprised to learn that her health care coverage would not begin until after a mandatory three-month wait. She attempted to obtain private health insurance instead, but was unsuccessful because her pregnancy was deemed an uninsurable pre-existing condition. Within

1 Martin McKee et al, “Universal Health Coverage: A Quest for All Countries But under Threat in Some” (2013) 16 Value in Health S39.

2 UN Department of Economic & Social Affairs, International Migration Report 2017, ST/ESA/SER.A/403 (New York: UN, 2017) at 1.

3 Karina Fortuny & Ajay Chaudry, Overview of Immigrants’ Eligibility for SNAP, TANF, Medicaid, and CHIP (Washington, D.C.: U.S. Department of Health and Human Services, 2012).

4 Details of this vignette, with the exception of the character’s name, which is fictitious, are drawn from Ritika Goel, Gary Bloch & Paul Caulford, “Waiting for Care: Effects of Ontario’s 3-month Waiting Period for OHIP on Landed Immigrants” (2013) 59 Can Family Physician e269.

1 2 weeks of her arrival in Ontario, Okoye went into labour. She required a Caesarean section and was left with a bill of $12,000. When asked about her ordeal, she lamented: “The hospital and the charges, it’s a whole lot of money. The person just comes to the country, you haven’t settled yet, you haven’t got a job yet, and then you start by having bad credit, owing everywhere; it’s ... financially, it’s not correct. … They create a world of debt which one cannot imagine how [it can] be solved. And that to me, for an immigrant, is disastrous.”5

Should Okoye’s health care costs have been assumed by Ontario? Do the governments of Nigeria and Netherlands bear any health care responsibility toward her as the countries of birth and former habitual residence? Should our answers to these questions change had Okoye’s legal status in Canada been different? And should it matter if the health care required by Okoye were of another nature, say one that could be postponed by a few months without seriously jeopardizing her health?

Consider another example. Sabrina Navarro is a fifty-year-old Mexican national.6 She has lived without any legal status in Colorado, U.S. since 1998 and has three American-born children. In 2014, Navarro was diagnosed with end-stage renal disease (“ESRD”). Typically, patients with ESRD require dialysis three times a week, and for U.S. citizens the cost of this treatment is covered by Medicare, a federal health insurance program for seniors and people with certain disabilities. As an undocumented migrant, however, Navarro does not qualify for Medicare. Without the ability to pay for routine dialysis privately, she must instead rely on repeated emergency care, which is free at the point of service delivery. To qualify for emergency dialysis, each time she would have to wait until she becomes sufficiently sick, to a point where she would be throwing up, having difficulty breathing, and feeling as if she is drowning from her chest fluid. Once admitted, she would receive one round of dialysis, spend the night at the hospital, and receive a second dialysis the next morning before being discharged. For the next two days she would feel fine and she would even volunteer at a local school if she could. But gradually

5 Ibid. at e273.

6 Save for some changes to personally identifiable information, details of this story are drawn from Jennifer Brown, “Colorado Immigrants Forced to Wait Until the Brink of Death to Get Kidney Care” The Denver Post (7 February 2017), .

3 she would grow sicker again until, about a week later, her condition would become so critical that she requires another emergency dialysis. And the cycle continues.

Should Navarro have been entitled to routine dialysis as her citizen counterparts do? To what extent should migrants’ unauthorized presence in receiving states influence the breadth of health care protection they receive? And should our delineation of Navarro’s health care entitlement take into account factors such as her long length of residence in the country, her relationships with her American-born children, and her contribution to society through paid and unpaid work?

Stories like those of Okoye and Navarro as well as the types of questions they trigger are what inspire the present project. To state it simply, my objective in this dissertation is two-fold. First, I seek to study the differential health care coverage between citizens and international migrants in Western receiving countries, with the view to uncover the main sociopolitical forces that have contributed to such disparities. Second, I will subject migrants’ lesser health care coverage in Western receiving states to a normative analysis, and in so doing I look to articulate an account of health care entitlement for migrants that is morally acceptable. Implied in this latter undertaking is a recognition that my normative exploration must consider both issues of justice and legitimacy. By this, I mean that the health care entitlement that I outline for migrants in Western receiving countries ought to be not only just insofar as “there is a good moral argument for it” but also legitimate in the sense that it is “accepted by those to whom it applies.”7

Admittedly, this is not the first time that someone has undertaken to systematically examine the issue of migrant health care. Nor is it likely going to be the last. The normative questions posed by migrants’ struggle with health care coverage in Western receiving countries clearly invite more than a single set of reasonable answers, and what I endeavor to offer at the end of this project is but one of such possible views. Be that as it may, I believe the positions that I take and defend over the course of this exploration represent an important and necessary addition to the ongoing conversations on this topic. At the very least, they lay out an analytical framework that I think will help us better work through the central ethical problems raised by migrants’ health care needs.

7 T.M. Scanlon, “Justification and Legitimation: Comments on Sebastiano Maffettone’s Rawls: An Introduction (2012) 38 Philosophy& Soc Criticism 887 at 888.

Contemporary debate about migrant health care is largely dominated by two lines of argument. On the one hand, those in favour of expanding international migrants’ current health care coverage have tended to emphasize migrants’ physical presence in receiving societies. Such territorial presence, they argue, places a moral responsibility on receiving states to alleviate the suffering and indignity experienced by migrants as a result of health care insecurity.8 And from a self-interested standpoint, they warn that migrants’ impeded access to health care could have spillover effects on the overall health of receiving communities, including potential gaps in the prevention and control of infectious diseases and increased costs associated with delayed treatment.9 On the other hand, those who are reluctant to extend health care coverage to migrants—for reasons ranging from valid concerns about the sustainability of already overextended public health care programs to outright xenophobia—often underline the fact that migrants are not citizens of receiving countries. This lack of legal citizenship status is held out to be an indicator of migrants as outsiders, whose receipt of health care benefits should come second to the fulfilment of citizens’ health care needs. Thus, receiving societies are said to possess the rightful discretion in determining which migrants are deserving of their assistance and which are not, relying on such markers as self-sufficiency, law abidingness, and one’s “fit” with the pertinent society’s sociocultural identity.10

While I see truth in these prevailing views, I also find them unsatisfactory. The normative claims that I make in this dissertation, therefore, aim to speak to holders of both views. To those who advocate for greater health care entitlement for migrants, I say that migrants’ territorial presence can impose a moral duty on Western receiving societies to furnish these individuals with some health care coverage, but it does not on its own compel equal health care coverage between

8 See e.g. Alexander Vivero Neill, “Human Rights Don’t Stop at the Border: Why Texas Should Provide Preventive Health Care for Undocumented Migrants” (2002) 4 Scholar 405 at 424-429; James W Nickel, “Should Undocumented Aliens be Entitled to Health Care?” (1986) 16 Hastings Center Report 19 at 22-23.

9 See e.g. Patrick J Glen, “Health Care and the Illegal Immigrant” (2013) 23 Health Matrix 197; Patricia Illingworth & Wendy Parmet, The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity (New York: New York University Press, 2017), c 6.

10 See e.g. Karine Vanthuyne et al, “Health Workers’ Perceptions of Access to Care for Children and Pregnant Women with Precarious Immigration Status: Health as a Right or a Privilege?” (2013) 93 Soc Science & Medicine 78; Janet L Dolgin & Katherine R Dieterich, “When Others Get Too Close: Immigrants, Class, And the Health Care Debate” (2010) 19 Cornell JL & Pub Pol’y 283; Brietta R Clark, “The Immigrant Health Care Narrative and What It Tells Us About the U.S. Health Care System” (2008) 17 Ann Health L 229.

5 migrants and citizens of the receiving states. Such an equal claim on a society’s health care resources must be founded on a set of human relationships that are sufficiently strong such that people who are required to share their resources will indeed regard one another as equal and accept the distributive demand as legitimate. At this moment, unfortunately, I do not think migrants’ territorial presence is by itself enough to generate this kind of interpersonal bonds. Unless more work is done to cultivate a genuine sense of solidarity between all human beings, it is more appropriate to consider population-wide redistribution of health care resources in Western receiving societies as being sustained and inspired by the ties among their respective members. As such, to some extent, I can understand the instinct of us-versus-them that frequently underlies arguments that play down Western receiving countries’ health care obligations toward migrants. However, I contend that the wholesale portrayal of non-citizen migrants as outsiders is unjustly sweeping. To those who resist the inclusion of migrants in Western receiving states’ health care programs, I hope to demonstrate that many migrants should indeed be considered members of these states in a social sense, and on that basis, they must be entitled to the same level of health care as that enjoyed by their citizen counterparts.

1.2 Design of the Project

Having described in broad strokes what I strive to accomplish in this dissertation, the following subsections will flesh out how I intend to meet these objectives. In sequence, I outline the methods I will employ to study migrants’ health care entitlement, clarify the scope of my exploration, and set forth the normative stance toward health care in general that I will adopt as the foundation to build my migrant-specific analysis.

1.2.1 Methods

Corresponding to my twin aims, this dissertation can roughly be divided into two parts. I begin with an empirical study of migrants’ health care coverage in Western receiving countries. Based on a review of relevant statutes and secondary sources, I first sketch out how health care entitlement in these countries is broadly stratified along citizenship and immigration statuses, and how such stratification has intensified in the last several decades. Desk research is then conducted to discern the principal rationale behind the disparities between citizens’ and migrants’ health care entitlements in Western receiving countries. In the second half of the dissertation, I take these empirical observations as the point of departure and embark on a

6 normative assessment of migrants’ lesser health care coverage. It is in the course of this analysis that I will interrogate the prevailing arguments both for and against the expansion of migrants’ entitlement to health care, as well as advance my own views on the subject. Accordingly, my normative analysis resembles the method of “political theory from the ground up” utilized by

Joseph Carens when inquiring into the ethics of immigration.11 That is, my normative exploration of migrants’ health care entitlement is to be informed primarily by how governments and commentators in Western receiving countries have conceptualized and answered this ethical question to date. Any common grounds that exist between different sides of the debate are treated as morally acceptable, on which I hope to build my theorization. At the same time, exploring views and practices on the ground allows me to identify the real flashpoint in the contemporary migrant health care debate, namely the reach of social solidarity and societal membership beyond the domain of citizens. By tackling this issue head-on, my normative analysis aims to give us a real shot at moving the conversation forward.

Implicit in such a “bottom-up” approach to normative assessment is the fact that my analysis does not take one particular theory of justice as its starting point. Rather, given that my account of migrant health care entitlement emerges as a response to the current state of the debate on the topic in Western receiving societies, it is informed by the principles of liberty, equality, and reciprocity in their general sense, all of which are broadly accepted—and representative of what

John Rawls referred to as “an overlapping consensus”—in Western liberal democracies.12 The acceptance of my proposition, in other words, does not depend on, for example, whether one attributes the moral significance of health care to Rawls’s theory of fair equality of opportunity13 or Amartya Sen’s emphasis on equality of capabilities.14 Similarly, while my arguments lean heavily on the liberal assumption that all members in a society are free and equal, I do not place

11 The Ethics of Immigration (Oxford: Oxford University Press, 2013) at 9.

12 “The Idea of An Overlapping Consensus” (1987) 7 Oxford J Leg Stud 1 at 1.

13 A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), c II.

14 The Idea of Justice (Cambridge, MA: Harvard University Press, 2009), c 14.

7 any significance on whether this claim should flow from, say, Immanuel Kant’s account of liberalism or that of John Stuart Mill.15

1.2.2 Scope

When designing the current project, I have purposely limited the scope of my analysis in a few important ways. First, as I have alluded to repeatedly, the geographical focus of this dissertation is exclusively on Western receiving countries, which, for purely stylistic reasons, I also refer to as “Western receiving states,” “Western receiving societies,” or “Western liberal democracies” when appropriate. Irrespective of the phrase used, countries that I deem to come within my analytical purview include Canada, the U.S., Australia, New Zealand, and liberal democratic states in Europe. These countries resemble one another reasonably closely in terms of their systems of government, social values, and resource capacities. Seeing as “context often matters morally,”16 such similarities make it possible for me to evaluate the migrant health care policies of these states through one normative lens, and they allow me to say with some degree of confidence that the standard of migrants’ health care entitlement that I proffer can be generalized across these societies. It also means that my analysis can largely skirt the problem of extreme resource shortages facing some lower-income countries, which I think will necessarily entail different calculations when making allocative decisions.

The second point that I wish to make with respect to scope pertains to the population of my study. While it is clear that my inquiry in this project centres on international migrants physically present in Western receiving states, just who exactly constitute “international migrants”—a term I use interchangeably with “migrants”—is a question open to multiple answers and therefore requires some explanation. For instance, the United Nations Refugee Agency views migrants as

“distinct and different” from refugees and exhorts against the conflation of these two groups.17 Whereas refugees are said to be “persons fleeing armed conflict or persecution,” migrants are

15 My reference here to the liberalism of Kant and that of Mill adopts the same meaning and serves the same purpose as John Rawls’s usage of these theories in his explanation of what he considered an overlapping consensus in democratic societies. See Rawls, supra note 12 at 5-6.

16 Carens, supra note 11 at 307.

17 Adrian Edwards, “UNHCR Viewpoint: ‘Refugee’ or ‘Migrant’—Which Is Right?” (11 July 2016), online: UNHCR .

8 described as people who “choose to move … mainly to improve their lives by finding work, or in some cases for education, family reunion, or other reasons” and therefore do not face the same kind of impediment to safely return home.18 In contrast, for the purpose of statistical compilation, the United Nations Department of Economic and Social Affairs (“UNDESA”) defines “international migrants” more broadly to encompass “any person who changes his or her country of usual residence.”19 Here, “international migrants” is understood as an umbrella term that captures a wide range of people that relocate to another country either permanently or temporarily, including refugees. It is this latter meaning that I generally ascribe to the word “migrants” when I use it in this dissertation. This decision is driven strictly by convenience and is not meant to minimize the extraordinary circumstances facing refugees and asylum seekers. In fact, where necessary, my analysis will pay special attention to the experiences and concerns of these humanitarian migrants. But outside of these specific instances, I do not think any conclusions that I reach in this project will turn on this lexical choice.

Let me elaborate on the definition of international migrants that I have adopted. When it comes to one’s “country of usual residence,” the U.N.’s statistical arm interprets it as “the country in which the person has a place to live where he or she normally spends the daily period of rest.”20 At the risk of oversimplification, people’s usual residence basically denotes the place they sleep at night. This is a different concept from that of “ordinary residence” which I will introduce in later chapters to signify people’s membership in a society. Whereas “usual residence” is used to determine whether one has migrated internationally, I rely on “ordinary residence” to approximate the level of a migrant’s settlement in a receiving state. Accordingly, all migrants have their respective receiving countries as their places of usual residence, but not all migrants are ordinary residents, and therefore members, of their receiving countries. The difference between these two ideas is something that I hope will become clearer to readers as this dissertation progresses. But I think it is critical for me to flag this distinction from the outset.

18 Ibid.

19 Recommendations on Statistics of International Migration: Revision 1, Statistics Paper Series M, No. 58, Rev. 1 (New York: United Nations, 1998), para. 32 [Statistics of Migration]. A similar definition of migrants is used by the International Organization for Migration. See Glossary on Migration, No. 34 (Geneva: International Organization for Migration, 2019) at 130.

20 Statistics of Migration, supra note 19, para. 32.

The UNDESA’s definition further stipulates that for people’s country of usual residence to be considered changed, thus constituting migrants, their stay in the relevant receiving countries must be for a period of at least three months.21 Furthermore, to distinguish short-term migrants from international visitors, migrants who stay in receiving countries for less than twelve months must not have changed their usual residence for the purposes of “recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimage.”22 To the best of my knowledge, the UNDESA’s use of three and twelve months as temporal markers in its definition of international migrants is not intended to suggest that there is something inherently special about these timepoints. It is merely a form of line-drawing; the UNDESA could just as easily choose four and thirteen months instead without seriously distorting the meaning it seeks to impart to the term “migrants.” The main point that the UNDESA aims to convey is that international travel does not automatically cause a person to be categorized as a migrant. Some of these international travellers are better thought of as tourists in light of the short duration of, and the purpose behind, their stay in the destination. I take the same stance. I think this understanding of migrants is in line with the term’s common usage. But more importantly, the separation of migrants and tourists serves a substantive function in this dissertation. As I will illustrate in the upcoming chapters, one recurrent theme in the arguments against entitling migrants to publicly-funded health care is the depiction of migrants as “health tourists” who exploit the generosity of receiving societies. Adopting a clear differentiation between migrants and tourists will better enable me to probe the validity of this health tourism allegation.

Effectively, pursuant to the definition that I adopt, I include in the ambit of international migrants, inter alia, immigrants, refugees, asylum seekers, temporary foreign workers, international students, and undocumented migrants. It is the issue of these individuals’ health care entitlement that I occupy myself with in this dissertation. The only exception to this comes in Chapter 6, where I will appeal to ethical norms that are more universalistic in their reach than the concept of societal membership to establish Western receiving countries’ health care obligations toward migrants who are not, or not yet, members. Insofar as these norms may also be applicable to tourists given their physical presence in the receiving societies, I will grapple

21 Ibid., para. 37.

22 Ibid.

10 with how tourists’ moral claim for health care protection may differ from that of non-member migrants. The goal of this comparison, however, is not to comprehensively lay out tourists’ health care entitlement in Western receiving countries but to elucidate the content of that of non- member migrants.

Having considered the questions of where and who, the last point that I will make about the scope of my project relates to the question of what. I take it as self-evident that the subject of migrant health care comprises many dimensions. This dissertation does not purport to be an exhaustive treatment of the topic. Rather, reflecting my disciplinary roots, I will largely focus my examination on migrants’ de jure health care entitlement in Western receiving countries. To the extent that law embodies existing social norms, an assessment of migrants’ legal entitlement serves as a helpful starting point for a normative exploration of migrant health care. I am alive to the fact that legal entitlement does not always translate into de facto access to health care for migrants. Around the world, there are well documented instances where migrants who are eligible for public health care struggle to realize their entitlement.23 Thus, as Charles Watters cautioned, “an investigation of entitlements may tell us little about the lived experiences of [migrants] ‘on the ground’ where localized practices can routinely be at variance with explicitly stated policies and laws.”24 Likewise, analysis of entitlement will not by itself ensure that whatever health care are received by migrants, they would actually be culturally appropriate.25 I accept these as shortcomings of my project. Nevertheless, as I shall demonstrate in the empirical portion of this study, for many migrants, being denied publicly-funded or subsidized coverage indeed poses a serious challenge to their ability to access necessary and appropriate health care in Western receiving societies. Legal guarantee of coverage, in other words, is an important facilitator of health care access. Moreover, by crystalizing Western countries’ moral duties respecting migrants’ health care into a legally enforceable claim, the legal entitlement that I hope to articulate at the end of this dissertation sets the “criteria by which [one can] evaluate the

23 See e.g. Charles Watters, “Towards A New Paradigm in Migrant Health Research: Integrating Entitlement, Access and Appropriateness” (2011) 7 Intl J Migration Health & Soc Care 148; Constance MacIntosh, “Illness, Injury and Medical Deportation at the Frontier: The Canadian Legal Regime for Providing Health Care Protection to Agricultural Migrant Workers” in Catherine Régis, Lara Khoury & Robert P Kouri, Health Law at the Frontier: Les recontres en droit de la santé – Volume 2 (Montreal: Yvon Blais, 2018) 341.

24 Watters, supra note 23 at 149.

25 Ibid. at 150.

performance of political authorities” and hold them accountable in the event of noncompliance.26 For these reasons, even if only in an indirect way, I am hopeful that the normative pursuit I undertake here will still have much relevance for those who are concerned with the accessibility and appropriateness of health care for migrants.

1.2.3 Normative Assumptions

As I set my sights on clarifying the breadth of health care that migrants should be entitled to in Western receiving states, a fundamental question that I must wrestle with is whether health care of any kind can properly be characterized as an entitlement that can be claimed against a state. If the answer to this question is negative, then my project would be a non-starter. Fortunately, I find myself in good company as I adopt the contrary view. That is, my analysis of Western receiving states’ health care obligations toward migrants is predicated on the thesis that having an adequate level of health care protection constitutes a right. And I defend this thesis in three interrelated steps. First, I argue that health care has special moral importance. Thus, whenever an individual, migrant or not, cannot secure necessary health care, it is a cause for concern that demands a remedy. Second, I show that, unlike ordinary goods, it is both inefficient and inequitable for health care to be distributed through market mechanisms alone. It follows that, third, states are under a duty to ensure necessary health care is allocated on the basis of people’s need rather than ability to pay. On the basis of these propositions, the current project takes it as a given that all individuals, including migrants, have a moral claim on some society’s resources for the purpose of meeting their health care needs. By setting up my arguments this way, I hope to foreground in this dissertation the questions that I see as truly at the heart of the contemporary debate over migrant health care entitlement—namely, the degree to which, if at all, the responsibility of actualizing migrants’ moral claim to health care should be borne by receiving states as opposed to sending countries, and how the answer to this question may differ across various migrant populations.

26 Orielle Solar & Alec Irwin, A Conceptual Framework for Action on the Social Determinants of Health: Discussion Paper for the Commission on Social Determinants of Health (Geneva: World Health Organization, 2007) at 8, online: WHO at 8.

Let me now take a closer look at the three arguments that will form the premise of my analysis. To make a case for my first contention that unmet health care needs are morally problematic, I begin with a brief exploration of the humanitarian ethics. Broadly speaking, humanitarianism appeals to our empathy for fellow humanity and implores us to come to one another’s aid in the time of need so as to alleviate one’s anguish. It is said that, as humans, our common experience with and desire to eliminate suffering ought to inspire in us a sense of compassion toward people who face adversity. As Miriam Ticktin put it, humanitarianism is “one way to ‘do good’ or to improve aspects of the human condition by focusing on suffering and saving lives in times of crisis or emergency.”27 From this perspective, insofar as the hardship associated with ill health and one’s inability to obtain necessary care is something that all human beings can relate to and wish to avoid, a morally decent society is expected to do as much as possible to bring about its resolution.

Indeed, humanitarian narratives are often featured prominently in advocacy efforts to either expand society’s health care provision or resist cuts to health care benefits. For example, as Danielle Martin and Sandro Galea observed in the U.S., pleas for compassion have played a critical role in stalling the Republican Party’s attempts so far to undo the Patient Protection and Affordable Care Act (“PPACA”), which some feared could have resulted in the loss of health care insurance for millions.28 They noted that as “the national conversation was coloured by commentary about the meanness of the proposed Republican plans” and as “[r]epeatedly, a face was put on the public masses who would be worse off if the [PPACA] were repealed,” a growing number of politicians started to balk at the moral cost of their proposals.29 In other words, as people came to be reminded of and to identify with the potential suffering that might be experienced by others due to health care insecurity, the prospect of allowing this plight to occur proved unacceptable for many. At times, such humanitarian instinct has also helped rationalize society’s extension of health care to migrants. As a case in point, when the Welsh government decided in 2009 to maintain health care coverage for unsuccessful asylum seekers

27 “Transnational Humanitarianism” (2014) 43 Annual Rev Anthropology 273 at 274.

28 “Can Compassion Successfully Challenge the Status Quo on Health?”, Maclean’s (9 August 2017), online: .

29 Ibid.

13 notwithstanding the Court of Appeal’s ruling that permitted it to do otherwise, its Health Minister explained: “I’m simply looking at the human being at the end of the chain and saying if they’ve got severe health problems and they require help and assistance, as a civilised country we should give it.”30 Again, moral weight is placed on ensuring people’s access to necessary health care so as to alleviate their suffering.

To understand the moral significance of health care in strictly humanitarian terms, however, is vulnerable to at least two criticisms. For one, given that humanitarianism’s valorization of health care is rooted in our empathy for human suffering, when it is taken to the extreme, as Ticktin cautioned, it risks reducing people in need of health care to “pure victims” and pressing them to barter for others’ generosity “with one’s life and body.”31 In other words, the efficacy of humanitarianism’s appeal for compassion may come at the expense to people’s human dignity. Moreover, with a heavy emphasis on the experience of suffering itself, humanitarianism pays insufficient attention to the myriad systemic forces that contribute to people’s anguish. As Alicia Ely Yamin pointed out, suffering “is not the result of ‘natural’ biological causes but rather stems from human choices about policies, priorities, and cultural norms, about how we treat each other and what we owe each other.”32 These human causes make plain the often avoidable nature of the hardship associated with unmet health care needs, which in turn transforms the moral claim for necessary health care from a matter of charity to justice, entailing “standards of obligation and impl[ying] equality between individuals.”33 This means that health care is normatively salient not only because it alleviates suffering, but also because it is something that all human beings should have in a just world.

Depending on the account of justice that one subscribes to, the importance of being able to access necessary health care can be explained in different ways. For instance, building on John Rawls’s theory of justice as fairness, Norman Daniels underscored the moral imperative of health

30 Dallal Stevens, “Asylum Seekers and the Right to Access Health Care” (2010) 61 N. Ir. Legal Q. 363 at 375.

31 “Where Ethics and Politics Meet: The Violence of Humanitarianism in France” (2006) 33 American Ethnologist 33 at 40, 45.

32 “Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We should Care” (2008) 10:1 Health & Hum Rts 45 at 47.

33 Ticktin, supra note 31 at 45.

14 care as a necessary protection against the threat of illnesses and disabilities on human functioning and fair equality of opportunity in society.34 Jennifer Prah Ruger, on the other hand, leaned on the work of Amartya Sen to highlight the injustice of unequal human capability resulting from ill health, and stressed the significance of health care in minimizing the impact of infirmity and fostering human flourishing.35 Still others, including Daniel Hausman, have turned to John Locke’s classical liberal theory to explain the need for health care as a safeguard against the peril posed by diseases to one’s life, property, and freedom.36 My examination of migrants’ health care entitlement in this dissertation does not require me to settle on one of these theories of justice. On any of these grounds, health care—at least care that is life-saving or essential for the preservation of basic human functioning—is assigned a special normative status and its deprivation is considered a moral wrong.

Some commentators, while acknowledging the import of health care, have argued that the distribution of health care to those who need it could and should be left entirely in the hands of a free market.37 It is said that our focus should be on making sure that everyone has a fair share of income such that one will be able to afford health care in times of need. This brings me to the second of my foundational claims, namely that unregulated markets are inadequate for ensuring the attainability of health care for people in need of it. Given how market economy typically works, not only does the unique nature of health care render it difficult to be traded efficiently, but the markets’ single-minded focus on people’s ability to pay also risks leaving many people without the health care they require. In short, I submit that market mechanisms alone, assuming that they continue to operate in the way they do now, are insufficient for remedying the suffering as well as injustice emanating from people’s unmet health care needs.

34 “Health-Care Needs and Distributive Justice” (1981) 10:2 Philosophy & Public Affairs 146.

35 “The Moral Foundation of Health Insurance” (2007) 100 QJ Medicine 53.

36 “A Lockean Argument for Universal Access to Health Care” (2011) 28 Soc Philosophy & Policy 166; see also, Paul Menzel and Donald Light, “A Conservative Case for Universal Access to Health Care” (2006) 36 Hastings Center Report 36.

37 See e.g. David Limbaugh, “Let Free Market Fix Health Care”, The Spectrum & Daily News [of St. George, Utah] (10 March 2017) A6; Rudolph Giuliani, “A Free-Market Cure for US Healthcare System”, Boston Globe (3 August 2007) A13.

To start with, health care goods and services, especially those involving more than routine doctor’s appointments, are often too expensive even for people earning a decent income to pay out of pocket. The high price tag of health care is in part attributable to the peculiarities of the health care market that make cost containment difficult. Among other things, there tends to be a high level of information asymmetry between health care practitioners and patients with respect to the consequences and options of treatment, given that medical knowledge is usually not something that can be readily acquired through experience.38 And in light of the stress and pain that patients commonly experience by the time that health care is needed, it is not easy— sometimes even impractical due to potential risks to life or bodily function—for patients to delay their health care consumption while seeking out additional information.39 As such, patients typically defer to their health care providers on the question of treatment needs. The result, as Robert Evans explained, “is that to a large extent the seller can determine how much the buyer will purchase. It follows that the buyer is not particularly price-sensitive, since the agent who determines his consumption decisions does not pay the price for them and may indeed receive it.”40 The high cost of health care, in turn, means that many people who need it, particularly those who are not well-off, will not have the capacity to acquire it.

Although it is possible for people to lessen the financial barriers to health care by obtaining appropriate insurance ahead of time, an unregulated private health insurance system can have its own problems of inefficiency and inequity. One source of inefficiency in a strictly voluntary market stems from the threat of adverse selection.41 Since it is often difficult to determine the actual risk of ill health of each insured person, health insurers normally set their premiums based on the average risk of an entire community. This, however, means that the price of insurance may be too expensive for people who think of themselves as low-risk relative to the community as a whole, thus having an incentive to opt out of the insurance programs. If these healthier

38 Kenneth J. Arrow, “Uncertainty and the Welfare Economics of Medical Care” (1963) 53 American Economic Rev 941 at 951.

39 Robert G. Evans, “Information and Incentives: Peculiarities of the Health Care Market” (1972) 13 BC Studies 87 at 91.

40 Ibid.

41 David Cutler & Richard Zeckhauser, “Adverse Selection in Health Insurance” in Alan Garber, ed, Frontiers in Health Policy Research, vol. 1 (Cambridge: MIT Press, 1998) 1.

16 individuals indeed do so, insurers will likely need to adjust premiums upward to better reflect the heightened risk of those remaining in the insurance pool. This price escalation then risks driving away more policyholders who are comparatively low-risk, ultimately causing a self-perpetuating cycle of ever-rising premiums and a progressively smaller and higher-risk insurance group. In other words, adverse selection threatens the sustainability of a voluntary health insurance scheme. Of course, health insurers in an unfettered market can hedge against adverse selection by either decreasing the generosity of their insurance coverage or excluding high-intensity health service users from the insurance pool. But this could cause health insurance to become inaccessible for individuals who objectively have greater needs, which arguably diminishes the potential of health insurance as an avenue of health care access.42

These deficiencies of an exclusively market-based approach to distributing health care can be corrected by governments in a number of ways. For example, they may decide to assume people’s health care costs either in full or in part. Alternatively, they could try to improve the efficiency and equity of health insurance by, say, mandating its acquisition and restricting insurers’ ability to deny coverage to high-risk consumers. These possibilities, coupled with our concerns about the human suffering and injustice associated with people’s unmet health care needs, lead me to the third of the foundational propositions that my dissertation will rest on. That is, all countries are under an obligation to do what they can, beyond simply appealing to laissez- faire economics, to facilitate people’s attainment of an adequate level of health care. Or, to put it differently, adequate health care protection constitutes an entitlement that may be claimed by people against states.

Indeed, some would go further to argue that such recognition of health care as entitlement is required not only morally but also legally, especially at the international level. Frequently considered among the “second generation of rights” that are “related to political, social, and economic equity and championed during the industrial revolution,”43 the right of all human

42 Colleen M. Flood, International Healthcare Reform: A Legal, Economic and Political Analysis (London: Routledge, 2000) at 17-19.

43 Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2008) at 4.

17 beings to timely and appropriate health care is today widely acknowledged in international human rights law. Foremost, it is considered an integral component of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.44 As a case in point, art. 12(2) of the International Covenant on Economic, Social and Cultural Rights makes it clear that, to achieve the full realization of the right to health, state parties must take measures for “[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness.”45 As well, the right to health care is buttressed by, and intimately intertwined with, the guarantee of everyone’s rights to life,46 security of person,47 freedom from torture and ill treatment,48 and social security,49 to name but a few examples. To be sure, my proposition that governments are morally obligated to ensure people’s adequate health care protection stands on its own. But certainly, the guarantee of timely and accessible health care as a human right under international law reinforces my claim.

In sum, I believe I am on solid ground when adopting the view that adequate health care protection constitutes a right for all people, including migrants. And with this as my premise, I dedicate myself in this dissertation to the inquiry of who the proper duty bearer should be when it comes to helping migrants fulfil their right to health care. Specifically, I ask whether—and if so, to what extent—Western receiving countries ought to include migrants in their respective health care programs. The answer to this question, according to some, is easy. The understanding of health care as a universal human right, they say, necessarily implies that an equal degree of health care responsibility is owed by a state to every individual. However, I take this view to be too simplistic. As David Miller explained in a different context:

44 General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN CESCROR, 22nd Sess., UN Doc. E/C.12/2000/4 at 127 (2000), para. 11.

45 16 December 1966, 993 UNTS 3, art. 12(2)(d), 6 ILM 360.

46 See e.g. General Comment No. 36: Article 6 (Right to Life), UN HRCOR, 124h Sess., UN Doc. CCPR/C/GC/36 (2018), para. 26.

47 See e.g. General Comment No. 35: Article 9 (Liberty and Security of Person), UN HRCOR, 112th Sess., UN Doc. CCPR/C/GC/35 (2014).

48 See e.g. General Comment No. 2: Implementation of Article 2 by State Parties, UN CATOR, 39th Sess., UN Doc. CAT/C/GC/2 (2008).

49 See e.g. General Comment No. 19: The Right to Social Security, UN CESCROR, 39th Sess., UN Doc. E/C.12/GC/19 (2008).

[The] claim that every human being has equal moral worth … [suggests that] a world in which there is a starving peasant in Ethiopia is as bad as a world in which there is a starving peasant in Poland, all else being equal. However, this uncontroversial claim does not entail anything very straightforward about what particular agents should do in response to the harm. We do not yet know whether I as an individual, or any group I belong to, has more reason or less to help the Ethiopian than the Pole. There is a gap between our moral assessments of states of affairs and the reasons we

have for acting in relation to those states of affairs.50

Likewise, our acceptance that all persons are equally entitled to having their right to adequate health care fulfilled by a state does not in and of itself tell us who this state should be. In relation to a particular migrant, this state at first glance could be either the sending country or the receiving country given the ties of both to the migrant; conceptualizing health care as entitlement does not per se help us decide how to allocate the corresponding duty between them.

On this question, international human rights law also proves to be of limited help. As Norman Daniels and Keren Ladin observed, “[h]uman rights covenants and the international law based on them give states considerable leeway to determine policy with regard to welfare rights, such as a right to health care.”51 Indeed, save for a few categories of migrants, including refugees as well as migrant workers and their families,52 international legal instruments are generally vague about who the appropriate duty bearers should be concerning migrants’ right to health care. Such normative uncertainty underscores the need for better theorization of state responsibilities in the context of migrant health care, and it is in this respect that my dissertation especially aims to make a contribution.

50 “Cosmopolitanism: A Critique” (2002) 5 Critical Rev Intl Social & Political Philosophy 80 at 81 [emphasis original].

51 “Immigration and Access to Health Care” in John D. Arras, Elizabeth Fenton & Rebecca Kukla, eds, The Routledge Companion to Bioethics (New York: Routledge, 2015) 56 at 61.

52 See Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 art 23 (entered into force 22 April 1954); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, 2220 UNTS 3, art 28 (entered into force 1 July 2003).

1.3 Outline of Chapters

As described, my study of Western receiving countries’ health care obligations toward migrants will begin with an empirical survey of the status quo, before grappling with the normative inquiry of what these obligations should look like. In Chapter 2, I explore how migrants’ current health care entitlement generally stacks up against that of citizens in Western receiving countries. Relying on Canada as a case study and drawing international comparisons where appropriate, I show that Western receiving states routinely employ a mixture of immigration and welfare control measures to circumscribe migrants’ eligibility for public health care coverage, as well as the scope of such coverage. Oftentimes, such migrant health care restrictions are accompanied by rhetoric that emphasizes government’s need to contain public spending and preserve the integrity of immigration systems. As a result, migrants who are recent arrivals, those who are not admitted by receiving countries for employment purposes, and those who are in receiving countries without authorization tend to experience the severest gaps in their health care entitlement.

In Chapter 3, I continue my empirical examination with a view to better understand the sociopolitical context that shapes Western receiving states’ contemporary migrant health care policies. I suggest that one way to comprehend the unequal health care entitlement presently found between citizens and migrants in Western receiving countries and between different migrant populations is through the lens of neoliberalism. I contend that neoliberalism, at least in the prevailing form it has been rolled out over the last few decades, plays a critical role in fueling the growing nativism and xenophobia in Western societies. At the same time, the neoliberal emphasis on individualism and self-reliance has encouraged the impression of health care as less a common good and more a private commodity. The meeting of these forces, I argue, increasingly paints migrants’ receipt of public health care coverage in receiving countries as charity rather than entitlement. And whether migrants are considered deserving of such charity is foremost coloured by our perception of their economic utility.

Chapter 4 marks the start of the normative portion of my dissertation. Having observed in the previous chapters that migrants’ health care coverage is regularly curtailed in receiving countries because of supposed need to control public spending and discourage immigration fraud, I subject these claims to closer scrutiny here. By means of literature review, I find the validity of these assertions resting on shaky ground. Instead of their evidentiary rigor, I suggest the depictions of

20 migrants as financial burden and fraudsters derive their political traction from a system of social exclusion that is embedded in Western receiving societies. Such a social structure divides citizens and migrants into “us” and “them” and prioritizes the health care needs of the former over the latter. The normalization of this worldview, I submit, is the real driver behind the opposition to migrants’ health care entitlement in Western receiving societies.

The next two chapters pick up the notion of us-and-them that permeates today’s migrant health care debate, with the aim to dissect its moral implications. In Chapter 5, I contend that the instinct to limit health care coverage to those who constitute “part of us” reflects the present state of human solidarity. Referring to a form of cooperative relationship between people that is based on mutual identification instead of self-interested calculation, solidarity provides the necessary motivation and legitimacy to ongoing, population-wide redistribution of health care resources. Although it is in theory possible for such solidaristic ties to develop among all human beings, I, like many others, do not believe this to be the case at the moment. Until this reality becomes otherwise, I contend that resource redistribution demanded by state-based health care programs is more appropriately regarded as being anchored in the bond between members of a society. It follows that, for now, only members of a society can properly be said to enjoy equal moral claims for the said society’s health care resources. Advocates who champion a more universalistic approach to the delineation of health care entitlement will benefit from efforts that advance the growth of solidarity on the global level. But even under the status quo, the use of societal membership as the guideline for allocating health care resources, I suggest, should go beyond the superficial distinction between citizens and migrants. In light of the underlying interests that citizenship as a legal right is intended to safeguard, membership in Western liberal democracies must consist of not only people who hold the legal status of citizens, but also non- citizen migrants who have established ordinary residence, as well as those whose establishment of ordinary residence can be predicted with a degree of certainty. As members, and pursuant to the liberal democratic norms of equality and reciprocity, these migrants should enjoy a level of health care protection that is comparable to what their citizen counterparts are entitled to.

Chapter 6 rounds out my normative analysis by examining Western receiving countries’ health care obligations toward migrants who do not meet my conception of societal membership. They include short-term migrants (e.g., temporary foreign workers and international students) and potentially long-term migrants who arrived relatively recently and whose ordinary residence

21 cannot be confidently foretold (e.g., asylum seekers and undocumented migrants who have not yet attained ordinary residence). I argue that even in the absence of membership ties, Western receiving societies are responsible for the health care of these territorially-present migrants insofar as the principles of causation and remedial capacities apply. Whereas our concern about causation demands receiving countries to care for non-member migrants when they have contributed to these persons’ ill health, the appeal to remedial capacities captures the ethical obligations of receiving societies in a Good Samaritan scenario where they stand as the only agents capable of attending to non-member migrants’ health care needs. I posit that both principles are engaged when receiving countries become non-member migrants’ place of usual residence, hence a considerable social determinant of their health. Accordingly, although non- member migrants are not entitled to the same spectrum of health care that is given to members, they ought to at least have coverage for primary care and be able to receive treatment that cannot be deferred while in Western receiving societies.

However, it is worth emphasizing that given the moral significance of social solidarity in allocating societal resources, individuals’ membership in a given polity remains the primary relational anchor of their health care entitlement. This means that non-member migrants’ minimum health care entitlement in Western receiving countries exists in parallel with the health care coverage that they ought to receive from sending countries so long as they remain members thereof. Admittedly, different sending countries will have different resource capacities for meeting their health care responsibilities toward members who are abroad. To the extent that Western countries have played a key role in engendering and maintaining the resource disparities around the world, I further argue in Chapter 6 that they are under a moral duty to help lower- and middle-income countries meet the health care needs of expatriates.

I wrap up the dissertation with Chapter 7, where I summarize the arguments that I have developed, consider their implications, identify the gaps in my project, and explore possible directions of future research.

Chapter 2 Mapping Inequality: Health Care Entitlement of Migrants and Citizens 2.1 Introduction

Before proceeding with the normative assessment of whether international migrants ought to be entitled to the same public health care coverage as citizens of receiving countries, I wish to first situate this analysis within the appropriate legal, political and social contexts. Specifically, I will occupy myself in this chapter with the following inquiries: What types of publicly-financed health care benefits are currently provided by migrant-receiving countries to their citizens? What is the scope of health care protection for international migrants in these countries and how does it compare with the coverage enjoyed by citizens? How has international migrants’ health care entitlement changed over time and how have respective subgroups of migrants fared under these policy shifts? By tackling these questions, my goal is to lay bare some of the most prominent gulfs between the health care coverage of migrants and that of citizens, and to juxtapose such health care disparities against instances where migrants’ and citizens’ respective health care entitlement seemingly converges. In the next chapter, I will then contextualize findings from this comparative analysis within the broader neoliberal policy patterns. Together, these two chapters will lay the groundwork for my normative assessment of what the appropriate health care entitlement for international migrants should be.

With regard to methodology, as I noted in the introductory chapter, the research questions that I pose in this dissertation are meant to be answered against the backdrop of health care inequity experienced by international migrants residing in Western liberal democratic states. The same parameter extends to the descriptive task that I will perform in this chapter. More precisely, I will examine Canadian migrant health care policies both past and present as a case study and supplement this review by referring to relevant laws and policies in other Western liberal democracies where appropriate. The choice of Canada for closer inspection is advantageous for my purpose here for at least two reasons. First, between its thirteen provinces and territories (“provinces”), a broad spectrum of migrant health care policies exists across Canada, exhibiting a mixture of inter-jurisdictional convergence and divergence. As I will illustrate later in this chapter, most migrant health care policies of other Western liberal democracies can in fact find

22 23 analogues to some elements of the Canadian counterpart. This makes Canada a convenient starting point both for understanding how international migrants’ access to public health care resources is commonly managed by Western nations, and for spotting any deviations from the general trend. Second, migrants’ health care entitlement in Canada has ebbed and flowed over the years. These policy changes signal a protracted tug of war between those for and against the inclusion of migrants in Canada’s universal health care, and provide a window into the normative tropes regularly employed in the migrant health care entitlement debate. Identification of these recurrent arguments will be helpful in teasing out the interests that are at stake when deliberating international migrants’ claim to public health care.

To clarify, my survey of relevant rules and practices of other Western liberal democracies alongside Canada’s migrant health care policies in this chapter is not intended to be a fulsome international comparison. To do that will require much more detailed analysis of the workings of each Western country’s health care and immigration systems, which not only is a tall order but will also defeat my aim to focus on Canada as a case study. Instead, the objective of my comparative exercise here is relatively modest. By identifying the similarities between Canadian policies and those of other Western nations, I hope to demonstrate that the health care coverage gaps facing international migrants in Canada vis-à-vis citizens are not a sui generis phenomenon. Conversely, by pointing out some of the different policy choices that have been made by other countries, I look to set the stage for later chapters by highlighting the demand for a coherent framework that can be utilized to arbitrate these policy differences. As such, at each point of comparison, only policies of selected international jurisdictions that arguably best further these ends will be discussed. Likewise, when I examine the evolution of migrant health care entitlement in Canada and abroad in this chapter, it is not my goal to inspect every twist and turn of related policies. This discussion is mainly intended to show that even within the same jurisdiction, government’s position concerning migrants’ health care entitlement can change over time and such policy disagreements again underscore the need for a principled resolution.

The structure of this chapter is as follows. In Section 2.2, I briefly describe the mechanics of the Canadian health care system, focusing particularly on its constitutional and legislative framework and the scope of its coverage in terms of both beneficiaries and the basket of insured services. Having sketched out the legal and policy landscape of Canadian health care in general, in Section 2.3, I locate international migrants therein and outline their current health care

24 entitlement in the country. In Section 2.4, I trace a retrogressive trend in Canadian migrant health care policies in recent decades. Whereas Section 2.3 aims to uncover divisions between provinces in defining migrant health care entitlement, Section 2.4 seeks to highlight policy differences across time. In both sections, relevant migrant health care policies from other Western liberal democracies will be interwoven in the discussions when appropriate. Section 2.5 then presents some concluding remarks.

2.2 Overview of the Canadian Health Care System

As a federalist state, Canada’s sovereign powers are divided between the federal and provincial governments as stipulated in the Constitution Act, 1867.1 The subject of health, however, is “an area of concurrent jurisdiction,” over which both levels of government may validly legislate.2 Broadly speaking, the provinces have the authority to administer the country’s publicly-financed hospital and medical insurance regime known as Medicare.3 The federal government, on the other hand, has the constitutional competence to provide discrete health care benefits to such populations as Indigenous peoples, members of the armed forces, veterans, inmates of federal penitentiaries, and certain international migrants.4 Moreover, by exercising its sweeping spending power, the federal government is permitted to enter into cost-sharing agreements with the provinces and leverage its cash contributions to fashion a national health care standard.5

Pursuant to the Canada Health Act (“CHA”),6 the federal government may withhold in part or in whole its cash contributions to provinces when they fail to ensure that their respective health insurance plans are publicly administered, comprehensive, universal, accessible, and portable.7

1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

2 Carter v Canada (AG), 2015 SCC 5 at para 53.

3 Eldridge v British Columbia (AG), [1997] 3 SCR 624 at para. 24. Territories’ power over health care provision is constitutionally rested with the federal government. However, through a series of legislative arrangements, the Canadian government has delegated much of this power to territorial authorities. See Martha Jackman, “Constitutional Jurisdiction over Health in Canada” (2000) 8 Health LJ 95 at 116.

4 Jackman, ibid. at 106-109.

5 Winterhaven Stables Ltd v Canada (AG) (1988), 53 DLR (4th) 413.

6 RSC 1985, c C-6 [CHA].

7 Ibid., s 15.

To facilitate health care access, the CHA further provides for mandatory deductions from federal transfer payments to a province when, for the purpose of receiving a covered service, Medicare- insured patients in that province are charged by health care providers either at a rate that is above the set fee schedule, a practice known as extra-billing, or for an item that is not payable by the government, namely a user charge.8 In reality, the federal government’s record of enforcing the CHA has been abysmal, and as a result provinces have had little incentive to live up to the terms stipulated in it.9 This notwithstanding, Canada’s provincial health insurance programs generally share the following modus operandi: they operate as a single-payer scheme that covers insured services from the first dollar for all eligible residents on uniform terms and conditions, they are managed on a non-profit basis by public authorities, and their coverage is portable by insured persons when they move from one province to another.

To qualify as an insured person under Medicare, one must be a resident of the relevant province who is not still completing the legislatively required waiting period.10 A resident is defined by the CHA as “a person lawfully entitled to be or to remain in Canada who makes his home and is ordinarily present in the province, but does not include a tourist, a transient or a visitor to the province.”11 The vagueness of this definition stands out even upon a cursory reading: What does it mean to be “lawfully entitled to be or to remain in Canada”? Does it include only individuals with rights or authorizations to be present in Canada? Or does it encompass anyone who has an active application in the immigration and refugee system? Or does it refer to an even broader set of people? What qualifies a person as “making his or her home and being ordinarily present in a province”? Who constitute tourists, transients, and visitors respectively and how do they differ from short-term migrants? Since the CHA offers no guidance on these matters, provinces often take advantage of these ambiguities when crafting the eligibility rules of their respective Medicare programs. As I will demonstrate later, such provincial latitude in determining who counts as an insured person commonly works against international migrants, particularly those

8 Ibid., ss 18-19.

9 Colleen M Flood & Bryan Thomas, “Modernizing the Canada Health Act” (2016) 39:2 Dalhousie LJ 397 at 399- 400.

10 CHA, supra note 6, s 2, s.v. “insured person”.

11 Ibid., s 2, s.v. “resident”.

26 whose legal status in the country is more precarious. However, for most Canadian citizens, Medicare coverage is usually attainable upon their establishment of the intent to reside in the relevant province for at least six months per year.12 Many provinces would even excuse resident citizens from such residency requirements if the reason for their temporary absence is to attend school, engage in short-term employment or volunteer work, or go on a vacation.13

Once residents qualify as Medicare beneficiaries, they are entitled to receive a basket of health services, which according to the CHA include hospital, physician and surgical-dental services that are not otherwise covered by another public scheme, such as workers’ compensation programs.14 In turn, hospital services are defined as any services “provided to in-patients or out- patients at a hospital, if the services are medically necessary for the purpose of maintaining health, preventing disease or diagnosing or treating an injury, illness or disability.”15 Physician services refer to “any medically required services rendered by medical practitioners.”16 And surgical-dental services encompass “any medically or dentally required surgical-dental procedures” that need to be and are indeed performed by a dentist in a hospital.17 The question of which health care procedures meet the threshold of medical necessity or requirement is left unanswered in the CHA. As such, the provinces enjoy much interpretive freedom in deciding which goods and services are insured by their respective Medicare plans.

12 See e.g. Medicare Protection Act, RSBC 1996, c 286, s 1, s.v. “resident”; Medical Care Insurance Beneficiary and Administration Regulations, RRS, c S-29, Reg 13, s 3(b); Regulation respecting eligibility and registration of persons in respect of the Régie de l’assurance maladie du Québec, RRQ, c A-29, r 1, s 6 [RAMQ Regulation]; PEI Reg EC453/96, s 1(n). Contrary to the usual practice, Ontario requires a Medicare-eligible resident to be physically present for at least five months in a twelve-month period. See RRO 1990, Reg 552, s 1.5(1) [OHIP Regulation]. At the other end of the spectrum, Newfoundland and Labrador interprets “ordinary presence” for the purpose of determining Medicare eligibility as “the stated intention, under oath, … to live in [the province] for a period of at least twelve consecutive months.” See letter from Cherry Hicks, Manager of Public Services and Administration at the Newfoundland and Labrador Department of Health and Community Services, to author (22 November 2012) [on file with author].

13 See e.g. Medical and Health Care Services Regulation, BC Reg 426/97, ss 3-4; Residency and Registration Regulation, Man Reg 54/93, s 7(1); NB Reg 84-20, s 3(4).

14 Supra note 6, s 2, s.v. “insured health services”.

15 Ibid., s 2, s.v. “hospital services” [emphasis added].

16 Ibid., s 2, s.v. “physician services” [emphasis added].

17 Ibid., s 2, s.v. “surgical-dental services” [emphasis added].

In light of the CHA’s emphasis on hospital-based and physician-delivered health care, the following goods and services are generally not universally covered by provincial Medicare: pharmaceuticals and assistive devices consumed outside hospitals, dental and eye care services performed in non-hospital settings, complementary care, home care, and long-term care. Canadian residents in need of these services can sometimes access them through a patchwork of public and private schemes. For example, in Ontario, coverage for some of these services is provided to eligible children, seniors, people with disabilities, and low-income earners through social assistance programs.18 The federal government also provides some of these services to specific populations that come within its constitutional jurisdiction through measures like the

Non-Insured Health Benefits for Aboriginal peoples,19 and the Interim Federal Health Program for certain humanitarian migrants.20 Meanwhile, some individuals acquire coverage for such extended health care through employer-sponsored benefit plans. For people who do not have access to any of these options, however, they will either have to purchase private health insurance or pay for services out of pocket.

Having outlined the institutional skeleton of the Canadian health care system, I will now turn my attention to fleshing out how the system presently responds to international migrants’ health care need.

2.3 Summary of International Migrants’ Current Health Care Entitlement

At first glance, the CHA’s express guarantee of Medicare’s universal coverage may cause international migrants to be sanguine about their health care entitlement in Canada. And to some degree, this optimism can even be seen as supported by the limited case law on the proper interpretation of “resident” for the purpose of Medicare eligibility assessment. In Hernadi v

18 Steve Barnes, Vanessa Abban & Alexandra Weiss, Low Wages, No Benefits: Expanding Access to Health Benefits for Low Income Ontarians (Toronto: Wellesley Institute, 2015) at 6-7.

19 Your Health Benefits: A Guide for First Nations to Access Non-Insured Health Benefits (Ottawa: Health Canada, 2012).

20 Interim Federal Health Program Policy (19 August 2019), online: Government of Canada [IFHP Policy].

British Columbia (Minister of Health), a province was found to have acted unreasonably when it construed “resident”—defined similarly in the provincial legislation as in the CHA—so narrowly as to render international students and foreign workers mere visitors and therefore excluded from

Medicare.21 The court in that case ruled that by restricting Medicare eligibility to citizens and permanent residents, the province ignored the fact that the definition of “resident” referred to not only individuals who are lawfully entitled “to remain” in Canada but also those allowed “to be” in the country. The court observed: “on a plain reading of the definition of ‘resident’ … the phrase ‘to be’ is used in contradistinction to the phrase ‘to remain’ to indicate that two classes of persons are entitled to be considered as residents; those who are entitled to make their home here temporarily and those who are entitled to make their home here permanently.”22 Thus, it would appear that international migrants, at least those with valid Canadian immigration authorizations, could legitimately expect to be afforded the same Medicare benefits as citizens regardless of the intended length of their residence in the country.

In reality, however, international migrants’ health care entitlement in Canada varies widely according to the immigration statuses that they are assigned, ranging from full Medicare coverage to having no rights to health care at all. At least two factors have contributed to this gap between the CHA’s seemingly universalistic aspirations and the status quo. First, even when it is broadly constructed, the definition of “resident” in the CHA is not open-ended. For one, it clearly excludes international migrants whose presence in Canada is not lawfully permitted. By regulating the terms of lawful admission and presence, the Canadian government has a history of precluding international migrants suspected as high health care users from the operative sphere of Medicare. Second, despite clarification by the court in Hernadi, much ambiguity remains around the Medicare eligibility of migrants, particularly those whose permission to be in Canada is more precarious and therefore at greater risk of being dismissed as tourists, transients, or visitors. At the same time, the federal government has persistently failed to enforce the terms of the CHA, including exercising its legal authority to interpret any ambiguities found therein. This means that the provinces have been allowed much leeway in denying Medicare coverage to

21 (1986), 10 BCLR (2d) 81 (CA).

22 Ibid at paras 17-18.

29 temporary foreign residents. I will address these two roadblocks to migrants’ equal health care entitlement in turn.

2.3.1 Health-Related Immigration Controls 2.3.1.1 Medical Inadmissibility

Canadian immigration law has long restricted the border entry of international migrants who are perceived as burdens on public coffers or otherwise undesirable due to their health conditions. Up until the late 1970s, such inadmissibility rules were typically directed at international migrants who had certain prescribed impairments and/or diseases .23 The Immigration Act promulgated in 1910, for example, outright prohibited the landing of migrants with mental or intellectual disabilities, as well as those with “loathsome” or infectious diseases.24 It also barred the admission of migrants with physical disabilities, unless they demonstrated sufficient wealth, family support, or a “legitimate mode of earning a living” that would alleviate concerns about their becoming a “public charge.”25 The 1919 amendments to the Immigration Act similarly underscored the need for migrants to be self-sufficient, while doubling down on the stereotype of people living with disabilities as burdens to society. Among other things, the list of migrants disallowed to land in Canada was expanded to include anyone deemed by officials “as being mentally or physically defective to such a degree as to affect their ability to earn a living.”26 In 1952, the law was further revised such that when migrants were rendered inadmissible, so would their accompanying family members in most cases.27

Since the passage of the Immigration Act, 1976-77, Canada has replaced the explicitly impairment- and disease-specific approach to medical inadmissibility with one that is more facially neutral, targeting migrants who are considered a likely threat to public health or public

23 Constance MacIntosh, “Medical Inadmissibility, and Physically and Mentally Disabled Would-be Immigrants: Canada’s Story Continues” (2019) 42:1 Dal LJ 125.

24 SC 1910, c 27, ss 3(a)-(b).

25 Ibid, s 3(c).

26 An Act to amend The Immigration Act, SC 1919, c 25, s 3.

27 Immigration Act, SC 1952, c 42, s 5(o).

30 safety, and those who might reasonably be expected to impose excessive demand on health and social care.28 A combination of regulations and policy instruments has subsequently been developed to specify health conditions likely to endanger public health or public safety.29 At present, the former includes active pulmonary tuberculosis and untreated syphilis, whereas the latter encompasses several categories of “serious uncontrolled and/or uncontrollable mental health problems.”30 Regarding what constitutes “excessive demand,” after some initial uncertainty,31 the term was formally defined in the Immigration and Refugee Protection

Regulations in 2002.32 Generally speaking, migrants are deemed to cause excessive demand on health or social services if, when compared with Canadians on average, they are forecasted to incur greater expenses in these areas in the five—or, under some circumstances, ten—years following their last immigration medical exams. Alternatively, excessive demand may be established when a migrant’s required health or social services would add to existing waiting lists, such that it would elevate the mortality and morbidity rates in Canada. Notably, refugees as well as family-class immigrants who are spouses, common-law partners, or children of Canadian sponsors are not subjected to the excessive demand prohibition.33

Despite their neutral wording, Canada’s contemporary medical inadmissibility rules still disproportionately affect migrants living with disabilities.34 And in the face of persistent allegations of disability discrimination, the Canadian government in 2018 significantly narrowed

28 SC 1976-77, c 52, s 19(1)(a).

29 Immigration and Refugee Protection Regulations, SOR/2002-227, ss 31, 33 [IRPR]; “Danger to Public Health or Public Safety” (last modified 15 May 2013), online: Government of Canada [Public Health Operational Manual].

30 Public Health Operational Manual, supra note 29.

31 Judith Mosoff, “Excessive Demand on the Canadian Conscience: Disability, Family, and Immigration” (1999) 26:2 Man LJ 149 at 157-159.

32 IRPR, supra note 29, s 1(1).

33 Immigration and Refugee Protection Act, SC 2001, c 27, s 38 [IRPA].

34 Roy Hanes, “None is Still Too Many: An Historical Exploration of Canadian Immigration Legislation as It Pertains to People with Disabilities” (2009) 37:1&2 Developmental Disability Bull 91; Douglas MacKay, “Immigrant Selection, Health Requirements, and Disability Discrimination” (2018) 14:1 J Ethics & Soc Philosophy 44.

the applicability of the excessive demand clause.35 Not only does the calculation of migrants’ anticipated demand on social services no longer take into account such services as special education and vocational rehabilitation, but also would migrants now be exempt from an excessive demand finding if their expected health and social care expenses are no more than three times the average Canadian per capita cost.36 Although this latest policy change has undoubtedly softened the discriminatory edge of the medical inadmissibility rules against migrants with disabilities,37 the government’s seeming reluctance to do away with the excessive demand prohibition speaks to the deep-rootedness of society’s fear of migrants becoming a burden. Arguably, for individuals who continue to be deemed medically inadmissible, immigration policies rather than Medicare eligibility rules pose the foremost barrier to their health care entitlement in Canada.

Occasionally, Canadian courts have allowed otherwise inadmissible migrants to enter the country by requiring them to trade off their rights to social and health care benefits. In Hilewitz v Canada

(Minister of Citizenship and Immigration),38 visa officers’ refusal to grant admission to two business-class immigrants out of concern that their dependent children with intellectual disabilities might pose excessive demands on social programs was found by the Supreme Court of Canada to be unreasonable. The Court held that immigration officials must take into account each migrant’s personal circumstances when determining medical inadmissibility, including his or her willingness and ability to pay the necessary social services out of pocket. Some lower courts have since demanded visa officers to similarly consider prospective migrants’ promise to privately defray the cost of their outpatient prescription drugs, either through personal insurance or employer-provided health benefits, as a part of the medical inadmissibility determination.39

35 “Temporary Public Policy Regarding Excessive Demand on Health and Social Services” (last modified 1 June 2018), online: Government of Canada .

36 Ibid.

37 MacIntosh, supra note 23.

38 [2005] 2 SCR 706.

39 See e.g. Companioni v. Canada (Minister of Citizenship and Immigration), [2011] 1 FCR 3; Rashid v Canada (Minister of Citizenship and Immigration) (2010), 88 Imm LR (3d) 165.

The Canadian federal government’s ongoing push to admit elderly family-class migrants through a special visa program that affords no health care entitlement represents a similar trade-off between border entry and rights to health and social support. Since late 2011, a new “super visa” has been promoted by Immigration, Refugee and Citizenship Canada as the preferred method over traditional family sponsorship for newcomers to bring their parents and grandparents to the country for reunification.40 While the super visa promises a faster application process and enables holders multiple entries into Canada over a period of up to ten years and a maximum stay of twenty-four months on each visit, it comes at the cost of health care disentitlement. Whereas individuals who are sponsored as family-class immigrants would acquire permanent resident status and therefore be entitled to Medicare, those entering with super visas not only are excluded from Medicare but are also required to purchase a private health insurance plan with a minimum of $100,000 coverage, which typically comes with a high price tag that is beyond reach for many.41

In both instances—namely, allowing prospective economic migrants to pay for their own health and social services, and diverting elderly family-class migrants to the super visa program— medical inadmissibility policy is substituted by cost-shifting measures that privatize government’s health care obligations. Contrary to the aura of liberalization that is often ascribed to them, these policy developments at best amount to a case of government giving with one hand and taking away with the other. For older migrants and those with disabilities, who are commonly stereotyped as burdens on society, Canada’s immigration control machinery clearly continues to play an active role in restricting their access to health care and related benefits.

2.3.1.2 Lawful Presence Requirements

The influence of immigration controls on migrant health care entitlement extends beyond the very moment of border entry determination, however. As mentioned, the CHA and provincial legislations that operationalize it define “resident” for the purpose of Medicare as including only

40 Citizenship and Immigration Canada, News Release, “Government of Canada to cut backlog and wait times for family reunification – Phase I of Action Plan for Faster Family Reunification” (4 November 2011).

41 “Backgrounder ─ Applying for a Parent and Grandparent Super Visa” (1 December 2011), online: Government of Canada ; Carol Sanders, “New Super Visa is ‘Super Disappointing’”, Winnipeg Free Press (21 December 2011) A4.

33 persons who are “lawfully” entitled to stay in Canada. In Manassian v Alberta (Minister of Health), the Alberta Court of Queen’s Bench held that “lawfulness” in this context denoted the ongoing possession of a legal status that would afford a person the right to enter or remain in

Canada as set out in relevant immigration statutes.42 The Court expressly rejected the argument that migrants without status should nevertheless be considered lawfully present when the outcome of their applications to stay in the country was still pending.43 Accordingly, for migrants who enter through unsanctioned pathways or who fall out of status while in the country, immigration controls continue to haunt them inside Canada’s territorial boundaries and impede these migrants’ access to Medicare. In Toussaint v Canada (AG), the Federal Court of Appeal similarly ruled that undocumented migrants were not eligible for the Interim Federal Health Program (“IFHP”) that was specifically designed for humanitarian migrants, either, because such benefits were supposedly intended for “those who lawfully enter Canada and find themselves under the jurisdiction of the immigration authorities.”44 Here again, by holding the power to dictate who have the right to enter and remain in the country, immigration law functions as a critical determinant of international migrants’ health care entitlement in Canada.

Denied both Medicare and IFHP coverage, undocumented migrants’ ability to secure necessary health care services in Canada is highly precarious. In Ontario, international migrants ineligible for Medicare may in theory obtain free primary care services at community health centres, which are partially funded by the provincial government. But front line experience suggests that services provided by community health centres are far from comprehensive, and access thereto is often impeded by long waiting lists and catchment area restrictions stemming from these facilities’ limited resources.45 Likewise, even though health care providers in Canada have an obligation under both common law (as well as civil law in Quebec) and professional code of ethics to treat those experiencing medical emergencies irrespective of the patients’ ability to

42 (1990), 65 DLR (4th) 744.

43 Ibid at para 25.

44 (2011), 100 Imm LR (3d) 175 at para 82 [emphasis added].

45 Sandra Elgersma, Immigration Status and Legal Entitlement to Insured Health Services (Ottawa: Library of Parliament, 2008) at 7; Alan Li et al, Transformation through Collective Action: Best Practices in Migration, HIV and Mental Health (Toronto: Committee for Accessible Treatment, 2008) at 29-30; Paul Caulford & Jennifer D’Andrade, “Health Care for Canada’s Medically Uninsured Immigrants and Refugees: Whose Problem Is It?” (2012) 58 Can Family Physician 725 at 726.

pay,46 undocumented migrants often face notable challenges in availing themselves of emergency care. First, physicians’ duty to treat in emergency contexts does not preclude them from subsequently seeking reimbursement from patients for services rendered. Although some physicians and hospitals may decide to absorb such costs themselves, others have actively pursued patients for payment, sometimes even forwarding the medical bills to collection agencies, leaving migrants in grave financial hardship.47 Second, some health care workers are known to have reported undocumented migrant patients to immigration authorities.48 This practice not only discourages other undocumented migrants from service utilization, but also reinforces the influence of immigration controls on international migrants’ health care access.

Canada’s treatment of undocumented migrants that are in need of medical attention is not unique among Western liberal democracies. In the U.S., for example, despite the passage of the Patient Protection and Affordable Care Act (“PPACA”) in 2010, which has lowered the number of uninsured in the country by more than 20 million upon by 2016,49 persons who are not “lawfully present” were expressly excluded from the various coverage-expansion measures such as the health insurance mandate and health insurance exchanges.50 This means that not only are many undocumented migrants in the U.S. expected to remain uninsured under the PPACA, but also for some of these migrants that had previously managed to receive employer-provided insurance, the new law would actually made them worse off if their employers now opt to offer health care benefits through the exchanges instead as they are encouraged to do.51 Consequently, undocumented migrants in the U.S. that cannot afford to pay for their care privately, like their

46 Anne F Walker, “The Legal Duty of Physicians and Hospitals to Provide Emergency Care” (2002) 166:4 CMAJ 465; Anette Sikka, Katherine Lippel & Jill Hanley, “Access to Health Care and Workers’ Compensation for Precarious Migrants in Quebec, Ontario and New Brunswick” (2011) 5 McGill JL & Health 203 at 233-237.

47 Nicholas Keung, “‘I Did Not Choose to Have Cancer’” Toronto Star (9 June 2013) A1.

48 See e.g. Cecile Rousseau et al, “Health Care Access for Refugees and Immigrants with Precarious Status” (2008) 99:4 Can J Public Health 290 at 291; Carolina Berinstein et al, “Access Not Fear”: Non-Status Immigrants & City Services (Toronto: n.p., 2006) at 9.

49 Michael Martinez, Emily Zammitti & Robin Cohen, Health Insurance Coverage: Early Release of Estimates from the National Health Interview Survey, January—September 2016 (N.p.: National Centre for Health Statistics, 2017).

50 Alison Siskin, Treatment of Noncitizens Under the Patient Protection and Affordable Care Act (Washington, D.C.: Congressional Research Service, 2011) at 10.

51 Patricia Illingworth & Wendy Parmet, The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity (New York: New York University Press, 2017) at 82-83.

Canadian counterpart, are often forced to seek medical attention at hospital emergency departments, which are generally required to provide emergency medical treatment to everyone irrespective of their immigration status and ability to pay.52 However, as is the situation in Canada, emergency care providers in the U.S. are free to bill uninsured patients afterwards for services rendered.53 Similarly, undocumented migrants in some E.U. countries—including

Austria, Finland and Ireland—must also pay privately when accessing emergency care.54 Moreover, in Lithuania, as well as Germany prior to 2009 and Sweden before its 2013 reform, health care practitioners have a legal duty to denounce and report undocumented migrant patients that they come in contact with to immigration officials.55

Undocumented migrants fare somewhat better in the U.K. Under the country’s National Health Service (“NHS”), everyone requiring accident and emergency services as well as treatment for certain communicable diseases is entitled to receive them free of charge.56 General practitioners also have the discretion to add anyone to their patient lists, thus facilitating some undocumented migrants’ access to publicly-funded primary care.57 But, for other types of health care, international migrants’ entitlement still turns in part on their lawful residency in the country. Pursuant to relevant legislations, NHS providers are obligated to charge patients for most secondary care services unless they are “ordinarily resident,”58 which according to the House of

52 Julianne Zuber, “Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S.” (2012) 28 J Contemp Health L & Pol’y 350 at 353-355. However, some undocumented migrants in the U.S., especially children and pregnant women, may be able to obtain care at government-funded community health centers or through special programs offered by some states. See Lisa Zamosky, “Healthcare Options for Undocumented Immigrants” Los Angeles Times (27 April 2014), online: .

53 Allison K. Hoffman, “A Vision of an Emerging Right to Health Care in the United States: Expanding Health Care Equity through Legislative Reform” in Colleen M. Flood & Aeyal Gross, eds, The Right to Health at the Public/Private Divide: A Global Comparative Study (New York: Cambridge University Press, 2014) 345 at 350.

54 Carin Bjorngren Cuadra, “Right of Access to Health Care for Undocumented Migrants in EU: A Comparative Study of National Policies” (2011) 22 European J Public Health 267. For a brief description of Sweden’s legislative reform in 2013, see “PICUM Bulletin ─ 12 July 2013” (12 July 2013), online: PICUM .

55 Cuadra, ibid at 268.

56 Kor Grit, Joost J. den Otter & Anneke Spreij, “Access to Health Care for Undocumented Migrants: A Comparative Policy Analysis of England and the Netherlands” (2012) 37 J Health Pol 37 at 41.

57 Ibid.

58 The National Health Service (Charges to Overseas Visitors) Regulations 1989, SI 1989/306 [1989 NHS Charging Regulations]; The National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556 [2011 NHS Charging Regulations]; Immigration Act 2014 (UK), 2014, c 22, s 39.

Lords do not include people whose presence in the country is unlawful.59 Thus, undocumented migrants are liable for the cost of most secondary care services that they receive, although whether the payment needs to be made upfront or after care is rendered depends on the urgency of the treatment in question.60

In comparison, international migrants’ health care eligibility in countries such as France, the Netherlands, Belgium, Portugal and Switzerland is less tied to the lawfulness of their presence. While some administrative access barriers do exist, most undocumented migrants living in these countries are legally entitled to the same array of health care benefits as that enjoyed by other residents.61 In other words, there is arguably a greater degree of separation between the health care systems and the immigration control machineries in these states,62 although I do not wish to overstate the point. In France, for example, a law introduced in 2011 has significantly restricted the government’s ability to issue residence permits to international migrants on medical grounds. Whereas under the previous legislative regime, migrants could apply for a permit to stay in France if they suffered from serious illnesses requiring treatment that they did not have effective access to in their home countries, under the new law they must demonstrate such care is unavailable at home.63 Insofar as this legislative change is likely to result in an increasing number of deportable persons in France, it has the effect of controlling international migrants’ access to health care by physically removing migrants from the operative domain of the health care system, much like the intended purpose of medical inadmissibility rules in Canada.

In sum, there is a broad spectrum of policy positions among Western liberal democracies on the extent to which immigration controls should impinge on migrant health care entitlement. While Canada clearly occupies one end of the continuum where immigration law plays an active role in

59 R v Barnet London Borough Council, Ex parte Shah, [1982] UKHL 14, [1983] AC 309.

60 U.K., Department of Health, Visitor & Migrant NHS Cost Recovery Programme: Implementation Plan 2014-2016 (Crown Copyright, 2014) at 5.

61 Bradford H. Gray & Ewout van Ginneken, Health Care for Undocumented Migrants: European Approaches (New York: The Commonwealth Fund, 2012).

62 For an account of how the French health care sector has resisted the pressure of immigration controls, see Elhadji Mbaye, “Contradictions in Public Policies: Immigration and the Struggle against AIDS in France” (2010) 5 Intl J Migration Health & Soc Care 29.

63 Remi Weiss, “France: Recent Immigration-Related Developments Affecting Persons Suffering from Serious Illnesses” (2011) 15:3 Can HIV/AIDS Pol’y & L Rev 38.

37 managing migrants’ access to public health care, there are also a number of countries that evidently believe a different policy approach is more appropriate. To evaluate these opposing stances will require better understanding of why governments are motivated to grant any level of health care to international migrants in the first place. Again, I will turn my attention to this inquiry in the chapters still to come.

2.3.2 Gaps in Provincial Health Care Coverage

Besides immigration-related hurdles, international migrants must maneuver through a web of provincial legislations that delineate the scope of Medicare’s beneficiaries to secure health care entitlement in Canada. Although Canadian provinces in theory have a strong financial incentive to observe the criteria and conditions set out in the CHA, the federal government’s chronic underutilization of its enforcement powers under the legislation has meant that provinces enjoy much latitude in crafting the terms of their respective Medicare programs, including who is covered. To date, despite the glaring ambiguity that exists in the definition of “resident” in the CHA, the federal government, which holds the authority to do so, has failed to provide any clarification besides suggesting that the intent of the CHA was to ensure the health care coverage of “all bona fide residents of all provinces.”64 Neither has the federal government ever invoked its power under the CHA to reduce or withhold cash contributions as a response to the provinces’ failure to confer proper Medicare entitlement on eligible residents, including international migrants. As a result, the provinces regularly interpret their health care responsibilities for international migrants minimally. This is particularly the case concerning the Medicare eligibility of temporary migrants, who are often cast as mere visitors instead of short-term residents.

64 Letter from Hon. Jake Epp to all provincial and territorial Ministers of Health (18 June 1985) in Health Canada, Canada Health Act ─ Annual Report 2018-2019 (Ottawa: Health Canada, 2020) at 251 [CHA Annual Report].

Figure 2.1. Number of Migrants Admitted into Canada as Permanent Residents versus Number of Temporary Resident Permits Issued Annually, 1998 – 2017 900

800 Temporary Foreign Residents

700 Permanent Foreign Residents (Thousands) 600

500

400

300

200

100

0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

To fully appreciate its ramifications, temporary migrants’ under-inclusion in Medicare must be situated against Canada’s current practice of channelling ever more international migrants into temporary entrance statuses. Between 1998 and 2017, whereas the number of foreign nationals admitted into the country as permanent residents each year rose from approximately 174,200 to 286,500, the number of temporary permits granted annually more than tripled, jumping from roughly 261,300 to 811,200 (see Figure 2.1).65 This growing emphasis on temporary migration serves at least two policy objectives. First, it fuels “a ‘just in time’ labour market strategy” that aims to maximize short-term economic gains.66 Not only can temporary migrants be leveraged by employers to bridge immediate skills gaps in the labour market, but they also represent the quintessential “flexible” workers coveted in the contemporary economy as their precarious legal status weakens their bargaining power and often forces them to accept substandard working

65 Data in Figure 1 are compiled based on information obtain from “Facts and Figures 2017: Immigration Overview – Permanent Residents,” online: Government of Canada and “Facts and Figures 2017: Immigration Overview – Temporary Residents,” online: Government of Canada . The number of temporary resident permits issued annually represents the total number of Temporary Foreign Worker Program work permits, International Mobility Program work permits, work permits for other purposes, and international student permits signed in a calendar year, plus the number of asylum claims made in the same year.

66 Naomi Alboim & Karen Cohl, Shaping the Future: Canada’s Rapidly Changing Immigration Policies (Toronto: The Maytree Foundation, 2012) at 58.

conditions.67 Second, temporary immigration authorization allows government to begin reaping the benefit of immigration while it continues to scrutinize migrants’ deservingness for full inclusion. In other words, it creates an added layer of immigration controls and forces migrants to undergo a probation period during which their “suitability for longer-term employment and settlement” can be verified.68 So long as temporary migration continues to further Canada’s economic interests and it remains a popular policy choice among immigration officials, the provinces’ exclusion of temporary migrants from Medicare will result in an ever widening gap between the health care coverage of Canadian citizens and that of international migrants as a whole.

In this subsection, I will summarize the present health care entitlement across Canada of four classes of international migrants: permanent residents, temporary foreign workers, international students and asylum seekers (including a number of other humanitarian migrants that do not have permanent resident status in the country). Admittedly, while most international migrants fall within at least one of these four groups, some do not belong to any of these categories. But considering my primary objective here is to bring to light the nature of health care coverage gaps that are most commonly experienced by international migrants (besides those facing undocumented migrants already mentioned above), a policy review focusing on these populations should be adequate.

2.3.2.1 Permanent Residents

International migrants generally receive permanent resident status in Canada through three channels: economic immigration, family sponsorship, and refugee protection.69 Regardless of the pathways that they take to attain such a status, international migrants who are permanent residents, also known as landed immigrants, are entitled to Medicare on equal terms as Canadian citizens across the country. In British Columbia, Northwest Territories, Ontario, Quebec, and Yukon, this

67 Jason Foster, “Making Temporary Permanent: The Silent Transformation of the Temporary Foreign Worker Program” (2012) 19 Just Labour 22 at 41-42.

68 Luin Goldring & Patricia Landolt, “The Conditionality of Legal Status and Rights: Conceptualizing Precarious Non-citizenship in Canada” in Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013) 3 at 8.

69 IRPA, supra note 33, s. 12.

40 means that landed immigrants, like citizens who move from another jurisdiction, must undergo a wait of up to three months before they are eligible for Medicare benefits.70 Although such residency requirements have been found by courts to be in compliance with the constitutional guarantee of equality rights,71 they in fact have a disproportionate impact on newly landed immigrants. Pursuant to the CHA’s portability criterion, beneficiaries of one province’s Medicare plan can usually maintain their coverage for up to three months after they permanently relocate to another province. This allows existing Medicare beneficiaries that move to provinces with a waiting period to avoid any lapse in health care coverage. However, since newly landed immigrants are applying for Medicare for the first time, they do not have an alternative public health care program to fall back on. Thus, for them, the three-month wait imposed by certain Canadian jurisdictions represents a true gap in their public health care entitlement.

Among other Western liberal democracies, the extension of equal health care entitlement to citizens and migrants who have the right of permanent or long-term residence appears to be commonplace.72 But like some Canadian jurisdictions, a number of countries do depart from this general practice by imposing certain waiting periods on new immigrants seeking public health care benefits. For example, social insurance-based health care systems in France, Lithuania and Luxembourg require some new immigrants who are not E.U. nationals to make contributions for a minimum period of time, usually up to three months, before coverage is initiated.73 In Australia, while permanent residents are eligible for public health care insurance on the same terms as citizens,74 they must wait for two years before qualifying for means-tested health care support that is provided through social security programs such as concessions on pharmaceuticals, dental care and eye care.75 In the U.S., permanent residents who arrive after the passage of the Personal

70 CHA Annual Report, supra note 64 at 91, 109, 178, 194 & 207.

71 See e.g. Irshad (Litigation guardian of) v Ontario (Ministry of Health) (2001), 55 OR (3d) 43 [Irshad].

72 See e.g. Migrant Access to Social Security and Healthcare: Policies and Practice (N.p.: European Migration Network, 2014) at 23 [EMN Report]; N.Z., Ministry of Health, Health and Disability Services Eligibility Direction 2011 (Crown Copyright, 2011) [NZ Eligibility Direction].

73 EMN Report, ibid at 51.

74 Health Insurance Act 1973 (Cth.), s 3(1), s.v. “Australia resident”.

75 Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth.).

Responsibility and Work Opportunity Reconciliation Act in 1996 are generally excluded from Medicaid and Children’s Health Insurance Program (“CHIP”) during their first five years in the country.76 This continues to be the situation today, although permanent residents may now purchase health care insurance in an exchange and, if they meet the income requirements, receive tax credits toward their insurance premium during this waiting period.77

2.3.2.2 Temporary Foreign Workers

When compared with permanent residents, international migrants that are only authorized to be in Canada on a temporary basis face much more difficulty qualifying for public health care benefits. But among temporary foreign residents, migrant workers—i.e. international migrants that are permitted to work in Canada for a limited duration—have fared relatively better. Unlike other groups of temporary migrants that I discuss in this chapter, no Canadian provinces currently bar temporary foreign workers from their Medicare plans outright. That being said, notable gaps do exist in temporary foreign workers’ public health care coverage in the country.

Table 2.1 contains a summary of the requirements that temporary foreign workers must meet in order to qualify for Medicare in each province. It shows that across Canada, those who do not possess an employment authorization that is at least six-month long, and sometimes even yearlong, are largely rendered ineligible for coverage. In Quebec, ironically, many migrants that are employed under an “open” work permit scheme—which allows workers to switch employers at will and should in theory better protect them from exploitation and maltreatment78—are left medically uninsured. Similarly, in both Ontario and Saskatchewan, foreign workers with open permits are not entitled to public health care unless they have secured full-time employment in the respective provinces. Furthermore, migrant workers in nearly half of the provinces are denied

76 8 U.S.C. § 1613(a) (1996) [PRWORA]. A number of states, however, have elected to extend public health care to some immigrants, particularly children and pregnant women, during the five-year ban. See Karina Fortuny & Ajay Chaudry, Overview of Immigrants’ Eligibility for SNAP, TANF, Medicaid, and CHIP (Washington, D.C.: U.S. Department of Health and Human Services, 2012).

77 Siskin, supra note 50 at 8.

78 Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (Toronto: Metcalf Foundation, 2012) at 76-78.

Medicare benefits in the first three months of their arrival. In the Northwest Territories, this waiting period lasts twelve months.

There are, however, two caveats to this general trend. First, the health care entitlement enjoyed by foreign workers who are employed in Canada under the Seasonal Agricultural Worker Program stands out as an anomaly. Notwithstanding their relatively brief presence in Canada (i.e. up to eight months per year), seasonal farm workers not only are expressly granted Medicare coverage in Ontario and Quebec, where the vast majority of them work,79 but they are also exempt from the usual three-month waiting requirement in both provinces. Likewise, in Manitoba and Saskatchewan, these migrants are among the foreign workers who qualify for Medicare immediately upon arrival.

79 Janet McLaughlin, Trouble in Our Fields: Health and Human Rights among Mexican and Caribbean Migrant Farm Workers in Canada (Ph.D. Thesis, University of Toronto Graduate Department of Anthropology, 2009) [unpublished] at 38.

Table 2.1. Rules Respecting Temporary Foreign Workers’ Medicare Coverage in Canada80 Jurisdictions Conditions for Medicare Coverage Newfoundland & - work permit must be valid for at least 12 months Labrador - work permit must be valid for at least 12 months Nova Scotia - worker must promise not be outside the province for more than 31 consecutive days per year unless required by work Prince Edward - work permit must be valid for at least 6 months Island81 - work permit must be valid for at least 12 months New Brunswick82 - eligibility starts after a 3-month waiting period - work permit must be “closed” in nature and be valid for at least 6 months, unless in the Seasonal Agricultural Worker Program (“SAWP”) or the Post Quebec83 Graduation Work Permit Program - eligibility starts after a 3-month waiting period, except for seasonal agricultural workers for whom coverage begins immediately - work permit must be valid for at least 6 months, unless in SAWP - worker must also have a formal agreement in place to work full-time for an employer in the province - except for those in the Live-in Caregiver Program, work permit must contain Ontario employer’s name and the worker’s occupation; workers with “open” permit must show a letter from the employer that sets out the forgoing information - eligibility starts after a 3-month waiting period, except for seasonal agricultural workers for whom coverage begins immediately - work permit must be valid for at least 12 months, unless providing an Manitoba agricultural service in the province - work permit can be valid for any duration Saskatchewan84 - workers with “open” permit must also show a letter from the employer indicating the start date of the employment Alberta - work permit must be valid for at least 6 months - work permit must be valid for at least 6 months British Columbia - eligibility starts after a 3-month waiting period Nunavut - work permit must be valid for at least 12 months - work permit must be valid for at least 12 months Northwest Territories - eligibility starts after a 12-month waiting period - work permit must be valid for at least 12 months Yukon - eligibility starts after a 3-month waiting period

80 Unless otherwise noted, for information contained in this table, see CHA Annual Report, supra note 64.

81 “Evaluating Migrant Worker Rights in Canada: 2018” (May 2018), online: Canadian Council for Refugees .

82 Population Growth Division, New Brunswick Temporary Foreign Workers: Employer Guide (Fredericton: Province of New Brunswick, 2011) at 8.

83 For information concerning the requirement that a beneficiary’s work permit be “closed” in nature, see “Operational Bulletin 111 – April 27, 2009” (27 April 2009), online: Government of Canada .

84 “Saskatchewan Health Services Card Application” (last visited 13 February 2020), online: Saskatchewan Ministry of Health .

Second, for some migrant workers who are ineligible for Medicare or who have not yet completed relevant waiting periods, their employers are legally required to furnish them with comparable private health insurance. Such obligations are spelled out in the standard contracts that Canadian employers must sign when hiring agricultural migrant workers, low-wage in-home caregivers, and other temporary foreign workers occupying low-wage positions.85 That said, with respect to seasonal agricultural workers specifically, employers are allowed to deduct some of the health insurance cost from their payroll, thus partially offloading the health care responsibility to migrants themselves.86 Moreover, as Constance MacIntosh remarked, “private health care is not Medicare.”87 Privately-insured migrant workers frequently must absorb health care expenses upfront and seek reimbursement later, which represents a significant barrier to service access for migrants without the ability to pay.88

The rules governing temporary foreign workers’ public health care coverage in some other Western countries display similar themes: lack of universal entitlement; where entitlement is granted, the predication of eligibility on work permits being of some minimum duration; and, imposition of mandatory waiting periods. Policies in Australia, for example, demonstrate the stark difference that could exist between the health care entitlement of temporary migrants and that of their permanent counterparts. Recall that migrants with permanent resident status in Australia are eligible for public health care insurance on equal terms as citizens (though not income-based benefits). In contrast, temporary foreign workers from countries other than a handful that Australia has signed reciprocal health care agreements with are completely denied

85 See e.g. “Contract for the Employment in Canada of Seasonal Agricultural Workers from Mexico – 2020” (last modified 7 February 2020), online: Government of Canada [Contract for SAWs]; Employment and Social Development Canada, Agricultural Stream: Employment Contract, ESDC EMP5510 (2019- 04-002) E; Employment and Social Development Canada, Temporary Foreign Worker Program: In-home Caregiver Employer/Employee Contract, ESDC EMP5604 (2018-01-001) E; “Instruction Sheet to Accompany Employment Contract” (last visited 20 June 2020), online: Government of Canada .

86 Contract for SAWs, supra note 85, s. V(5).

87 “Illness, Injury and Medical Deportation at the Frontier: The Canadian Legal Regime for Providing Health Care Protection to Agricultural Migrant Workers” in Catherine Régis, Lara Khoury & Robert P Kouri, Health Law at the Frontier: Les recontres en droit de la santé – Volume 2 (Montreal: Yvon Blais, 2018) 341 at 359.

88 Ibid.

45 public health care benefits. In fact, their possession of a minimum level of private health insurance coverage is a prerequisite for the issuance of work visas.89 Likewise, in the U.S., temporary foreign workers do not qualify for Medicaid or CHIP no matter how long they have been in the country. They are, however, allowed to participate in the health insurance exchanges and, if they meet the income criteria, receive tax credits for insurance premiums paid.90 Recent reforms in the U.K. have also steered the country’s policies in the same direction. Beginning in April 2015, most international migrants that lack indefinite leave to remain, including temporary foreign workers with authorization to stay in the U.K. for more than six months, must pay a health surcharge at the time of their visa application.91 This surcharge effectively functions as a user fee that only temporary migrants must pay in order to access otherwise free NHS services.

A number of countries also restrict health care entitlement for temporary foreign workers to those holding permits that are valid for a minimum length of time. In New Zealand, migrant workers will generally not qualify for public health care coverage unless they have permission to work in the country for two or more years.92 Likewise, public health care benefits in Finland, Ireland, and Sweden are only available to non-E.U. national migrant workers who are authorized to be in the country for at least a year.93 In Italy, only foreign workers with permits that are one year or longer can enrol in the public health care program as of right, but those that are working in the country for a shorter duration can participate in the health care scheme voluntarily and receive benefits upon paying a surcharge.94 And as I have already described, in France, Lithuania, and Luxembourg, temporary migrants including foreign workers who are not nationals of an E.U. country sometimes face a waiting period before their public health care

89 “Working Visa Applicants” (last visited 13 February 2020), online: Commonwealth Ombudsman (Private Health Insurance) .

90 Siskin, supra note 50 at 8.

91 “Pay for UK Healthcare as Part of Your Immigration Application” (last visited 13 February 2020), online: GOV.UK [Pay for UK Healthcare].

92 NZ Eligibility Direction, supra note 72, s B4.

93 EMN Report, supra note 72 at 23-24.

94 Ibid.

46 coverage is initiated as they are required to contribute to the health care insurance regimes for a minimum period of time, usually up to three months.95

2.3.2.3 International Students

More than any other temporary migrants discussed in this chapter, international students’ health care entitlement in Canada varies significantly from one province to another. In Ontario and Prince Edward Island, international students are entirely disqualified from Medicare. Manitoba also joined this list in 2018 as it reversed a legislative reform made in 2012 that expanded

Medicare to include international students with permits valid for at least 12 months.96 Conversely, Saskatchewan extend Medicare coverage to all foreign students who attend school full time irrespective of the length of their study permits. In between these two opposing stances, the remaining provinces have adopted an array of policies that restrict Medicare eligibility to some international students but not others, which I summarize in Table 2.2.

Among the provinces that provide Medicare coverage to at least some international students, most limit eligibility to those holding student permits that are valid for at least twelve months. To qualify for Medicare in Nova Scotia, foreign students must also not stay outside of the province for more than thirty-one consecutive days each year unless such is required by their study. In Newfoundland and Labrador, only foreign students registered in a post-secondary institution are covered by Medicare. In Quebec, availability of Medicare is restricted to foreign students that are either receiving a province-provided scholarship or from one of the countries that have entered into a social security reciprocity agreement with the province. And in Yukon, international students are excluded from Medicare with the exception of dependent children of temporary foreign workers that hold a work permit valid for a year or longer. Moreover, for students that are determined eligible for Medicare in British Columbia, Nova Scotia and Yukon, they must undergo waiting periods ranging from three to twelve months before coverage begins.

95 Ibid. at 51.

96 “Manitoba Cuts International Students’ Health Coverage” The Medicine Hat News (23 March 2018) 5.

Table 2.2. Rules Respecting International Students’ Medicare Coverage in Canada97 Jurisdictions Conditions for Medicare Coverage Newfoundland & - study permit must be valid for at least 12 months Labrador98 - student must attend a post-secondary education institution full time - study permit must be valid for at least 12 months - student must undertake to not leave the province for more than 31 consecutive days per year unless required as a part of study Nova Scotia99 - coverage extends only to health services received within the province - eligibility starts after a 12-month waiting period, unless student also works as a teaching or research assistant for whom coverage begins immediately Prince Edward Island - no Medicare coverage - study permit must be valid for the full scholastic year (i.e. from Sep. to Apr.) New Brunswick100 - student must attend a post-secondary education institution full time - if student receives a scholarship from the Quebec Ministry of Education; or Quebec101 - if student is from a country with which Quebec has signed a social security reciprocity agreement Ontario - no Medicare coverage Manitoba - no Medicare coverage (as of September 1, 2018) - study permit can be valid for any duration Saskatchewan102 - student must attend school full time - study permit must be valid for at least 12 months Alberta103 - students with a permit that is valid between 3 and 12 months must submit a letter confirming intent to reside in the province for at least 12 months - study permit must be valid for at least 6 months British Columbia - eligibility starts after a 3-month waiting period Nunavut - study permit must be valid for at least 12 months

Northwest Territories - study permit must be valid for at least 12 months - only if student is a child listed as a dependent of a person who holds a work Yukon permit that is valid for at least 12 months - eligibility starts after a 3-month waiting period

97 Unless otherwise noted, for information contained in this table, see CHA Annual Report, supra note 64.

98 “International Students” (21 June 2019), online: Newfoundland and Labrador Department of Health and Community Services .

99 Hospital and Medical Services Program for Persons on Student Visas Regulations, NS Reg 67/78; Hospital and Medical Services Program for International Students Employed as Teaching or Research Assistants Regulations, NS Reg 92/98.

100 “Applying for a Card” (last visited 13 February 2020), online: New Brunswick Department of Health .

101 “Eligibility for Québec Health Insurance Plan” (last visited 13 February 2020), online: Régie de l’assurance maladie du Québec .

102 “Supporting Documentation Required to Accompany Your Health Card Application” (last visited 13 February 2020), online: eHealth Saskatchewan .

103 “Health Care Coverage for Temporary Residents” (last visited 13 February 2020), online: Government of Alberta .

It should be noted, however, that many international students not covered by Medicare are not left completely uninsured, as they are often obligated by government and/or schools to purchase private health insurance.104 For example, all foreign university students in Ontario must participate in the University Health Insurance Plan (“UHIP”) unless they are covered by one of the approved alternative insurance schemes.105 According to multiple reports published by student organizations, the nature of UHIP falls short of being truly equivalent to Medicare. In particular, problems have been identified concerning UHIP’s accessibility, including expensive premiums that on occasions have jumped by more than fifty percent from one year to the next, as well as incomplete reimbursement of costs incurred, which have resulted in students commonly having to pay for health care services out of pocket.106

The diversity of policy positions across Canada with respect to foreign students’ health care entitlement parallels the policy landscape internationally. For instance, the rules adopted by Australia concerning foreign students’ health care closely resemble those of Ontario. While international students are largely excluded from the country’s public health insurance program, they must purchase Overseas Student Health Cover (“OSHC”) as a precondition of being awarded a student visa.107 Yet, when compared with the public regime, the benefits provided by OSHC exhibit a number of deficiencies. Not only do students face a twelve-month waiting period for pregnancy-related services and treatment for many pre-existing medical conditions, but they also can incur hefty out-of-pocket expenses as a result of copayment requirements, extra-billing by doctors, and incomplete insurance coverage.108 The policies of New Zealand, on

104 See e.g. Regulation respecting the selection of foreign nationals, RRQ, c I-0.2, r 4, s 47(1)(iii).

105 Daud Grewal, Policy Paper: International Students (Toronto: Ontario Undergraduate Student Alliance, 2010) at 9.

106 See e.g. ibid at 9-11; Special Committee on International Graduate and Professional Students, Report: Addressing the Cost of UHIP (University Health Insurance Plan) for International Graduate & Professional Students (Kingston: Queen’s University Society of Graduate and Professional Students, 2007).

107 “Overseas Student Health Cover” (last visited 13 February 2020), online: Commonwealth Ombudsman (Private Health Insurance) .

108 See generally, “Deed between the Commonwealth of Australia as Represented by the Department of Health and XXX in Relation to the Provision of Overseas Student Health Cover” (last visited 13 February 2020), online: Department of Health .

49 the other hand, echo those of Quebec. For a small minority of foreign students in the country that receive government bursary, public health care benefits are provided.109 Other international students are required to purchase appropriate medical insurance during their stay in the country.110

At the other end of the spectrum, health care systems in countries such as the U.K. and the Netherlands are more inclusive of international students. In the former, international students are entitled to utilize NHS services free of charge at the point of access, although as abovementioned, since April 2015 they must now pay a health surcharge when applying for a visa.111 In the latter, international students who hold a part-time job or a paid internship as well as those whose presence in the country is not strictly temporary in nature (when taking the entire circumstance of one’s migration into account) are required to enrol in the national health care insurance scheme, and may be eligible for tax allowances to offset the associated costs.112

2.3.2.4 Asylum Seekers and Other Humanitarian Migrants without Permanent Resident Status

Humanitarian migrants can apply for refugee protection in Canada both in and outside the country. For those whose refugee status is confirmed while they are abroad, including refugees sponsored by government, by private entities, or by both jointly, they are generally admitted into

Canada as permanent residents.113 As a result, they are entitled to Medicare across the country, and in Ontario and Quebec, they are exempt from the usual three-month waiting period.114 International migrants who file a refugee protection claim while in Canada are also eligible for Medicare upon receiving a positive decision and subsequently acquiring the status of permanent

109 NZ Eligibility Direction, supra note 72, s B4.

110 New Zealand Qualifications Authority, Code of Practice: For the Pastoral Care of International Students (Crown Copyright, 2010) at 5.

111 Pay for UK Healthcare, supra note 91.

112 Healthcare Insurance for International Students in the Netherlands (The Hague: Netherlands Organisation for International Cooperation in Higher Education, 2014), online: Nuffic .

113 IRPA, supra note 33, ss 12(3), 99.

114 OHIP Regulation, supra note 12, s 6.3; RAMQ Regulation, supra note 12, s 4.2(1).

50 resident. While their claim for asylum is still pending, however, they do not qualify for Medicare but could obtain public health care coverage through the IFHP.

As I will elaborate below, the IFHP in its modern iteration was instituted circa 1995 when economic downturns caused provinces to, one by one, exclude asylum seekers from their respective Medicare programs. Before June 30, 2012, the IFHP provided Medicare-comparable health care coverage to the following humanitarian migrants that did not have permanent resident status in Canada:

• asylum seekers and their dependent children; • asylum seekers whose refugee claims were refused, while their presence in Canada remained lawful; • persons who contested their deportation from Canada and had filed for a pre-removal risk assessment; • victims of human trafficking; and, • individuals under immigration detention.

As well, successful asylum seekers and their dependent children received IFHP benefits during Medicare’s three-month waiting period in provinces where such residency requirements were in place.115 Through the IFHP, these migrants were granted both basic and supplemental health coverage. Whereas basic coverage consisted of essentially the same basket of medically necessary and medically required services insured by Medicare, supplemental coverage afforded beneficiaries additional health-related support akin to those provided through provincial social assistance programs (e.g., essential prescription medications, basic vision care, emergency dental care, long-term care and certain medical devices).116 Government-assisted and privately- sponsored refugees also were eligible for the supplemental portion of IFHP benefits as they received basic coverage through Medicare.

115 Citizenship and Immigration Canada, Operational Manual ─ Reference, IR 3, Medical (N.p., 2010) at 5 [unpublished, on file with author] [IR3].

116 Information Sheet for Interim Federal Health Program Recipients (Ottawa: Citizenship and Immigration Canada, 2011) [2011 Infosheet].

For several years following June 30, 2012, the health care entitlement of asylum seekers and other similarly situated humanitarian migrants in Canada entered a state of flux due to successive policy changes. Supposedly intended to contain public spending, ensure fairness for Canadians and discourage foreign nationals from filing “unfounded” asylum applications only to take advantage of the free health care that was on offer, the federal government extensively pared down the scope of the IFHP.117 No longer affording all beneficiaries the same level of health care benefits, the 2012 version of the IFHP divided its coverage into several tiers largely based on the degree of perceived authenticity of beneficiaries’ humanitarian claims.118 An overview of how IFHP benefits were stratified among various humanitarian migrants can be found in Table 2.3.

Table 2.3. Health Care Coverage under IFHP between June 30, 2012 and November 4, 2014 Type of Coverage Beneficiaries - government assisted refugees Expanded Health Care - privately sponsored refugees receiving government income support Coverage - victims of human trafficking - privately sponsored refugees not receiving government income support - successful asylum seekers awaiting permanent resident status Health Care Coverage - persons with a positive pre-removal risk assessment awaiting permanent resident status - asylum seekers not from a designated country of origin PHPS Health Care - asylum seekers from a designated country of origin Coverage - asylum seekers whose refugee claim has been rejected - humanitarian migrants granted IFHP because of exceptional and Custom Coverage compelling circumstances Other Coverage - persons under immigration detention - asylum seekers who have withdrawn or abandoned their refugee claim No Coverage - applicants of a pre-removal risk assessment who is ineligible to make or have not made a refugee claim

Broadly speaking, all beneficiaries except refugees who were selected and resettled from overseas by government, victims of human trafficking, and individuals detained by border or immigration officials experienced cuts to their health care coverage. Asylum seekers who had abandoned or withdrawn their claims as well as foreign nationals facing deportation who had

117 Citizenship and Immigration Canada, News Release, “Reform of the Interim Federal Health Program Ensures Fairness, Protects Public Health and Safety” (25 April 2012), online: Government of Canada .

118 Order Respecting the Interim Federal Health Program, 2012, S.I./2012-26, C. Gaz. 2012.II.1135.

52 requested a pre-removal risk assessment were disqualified from the IFHP altogether, although they could petition the federal Immigration Minister for some health care benefits under exceptional and compelling circumstances. Asylum seekers from a list of countries designated by Canada as unlikely to produce genuine refugees, along with people whose asylum application was rejected, would only be entitled to services deemed necessary to alleviate threats of public health or public safety (“PHPS”). Consequently, pregnant women belonging to this category no longer had publicly-funded maternity care, and persons with mental illnesses would only receive treatment if they were considered to pose a threat to the general public but not if they manifested suicidal ideations. The remaining asylum seekers, although faring relatively better, saw their supplemental benefits virtually eliminated and the scope of the basic coverage reduced to urgent or essential health services. This meant that, for the most part, they no longer had coverage for primary and preventive care as well as prescription drugs, including some medications administered in hospitals (e.g., chemotherapeutic agents) that Medicare does cover for its beneficiaries.

The curtailment of IFHP benefits generated much public dissidence, especially among health care practitioners. They observed that the cuts were driving humanitarian migrants to seek care in community health centres, volunteer clinics, and hospital emergency departments where resources were already overstretched.119 Many health care workers also found the new IFHP benefit scheme confusing, and on multiple occasions, humanitarian migrants that were in fact covered by the IFHP were denied services by mistake.120 In response to the public outcry, both Quebec and Ontario announced in 2013 that they would step in and temporarily provide coverage for medically necessary services to asylum seekers and other humanitarian migrants that lost their benefits under the new IFHP.121

119 Ahmad Hathout, “Free medical clinics in GTA overwhelmed with refugees” The Globe and Mail (29 December 2012) A16.

120 Canadian Association of Refugee Lawyers, Press Release, “Doctors and Lawyers Challenge Federal Health Cuts to Refugees” (25 February 2013), online: CARL .

121 Régie de l’assurance maladie du Québec, Infolettre 005, “Services médicaux rendus aux demandeurs d’asile admissible au PFSI et resident au Québec” (9 April 2013); Ontario Ministry of Health and Long-Term Care, News Release, “Reinstating access to health care for refugee claimants” (9 December 2013).

At the same time, a legal challenge of the IFHP cuts was launched by a group of doctors, refugee lawyers and children’s advocates. In July 2014, the Federal Court of Canada declared the changes made to the IFHP unconstitutional on two grounds.122 First, as it afforded different levels of benefits to asylum seekers based on whether they came from countries that Canada considered safe or not, the new IFHP scheme was found discriminatory on the basis of national origin contrary to the constitutional equality guarantee. Second, the government’s reliance on IFHP cuts as a strategy to deter what it believed to be “bogus refugees” was ruled a cruel and unusual treatment, particularly in light of its adverse impact on child asylum seekers.

In response to the court ruling, the federal government decided to introduce yet another version of the IFHP in November 2014.123 The details of this variant of the IFHP are summarized in Table 2.4. In comparison with the IFHP scheme that was struck down, the new program entitled more humanitarian migrants to more health care benefits, but it still fell short of what the IFHP covered prior to June 30, 2012. Under this partially-restored IFHP, basic health coverage was expanded to again include most medically necessary services insured by Medicare. All beneficiaries under the age of nineteen saw their coverage restored to the pre-2012 level, consisting of both basic and supplemental health services. Beneficiaries who were pregnant were provided at least basic health care benefits and prescription medications. The same applied to asylum seekers whose refugee claim was rejected but whose removal from Canada was deferred because of the general danger present in their countries of origin. Moreover, all asylum seekers regardless of where their countries of origin were afforded the same level of health care benefits, which contained basic health coverage plus prescription drugs if the drugs were required to alleviate PHPS concerns.

122 Canadian Doctors for Refugee Care v Canada (AG) (2014), 28 Imm LR (4th) 1 [CDRC].

123 “Temporary Measures for the Interim Federal Health Program” (last modified 4 November 2014), online: Government of Canada .

Table 2.4. Health Care Coverage under IFHP between November 5, 2014 and April 1, 2016 Coverage Content of Coverage Beneficiaries Type - government assisted refugees - basic coverage - privately sponsored refugees receiving government income - supplemental health care Type 1 support benefits - victims of human trafficking - prescription drug coverage - all IFHP beneficiaries under 19 years of age - all IFHP beneficiaries (except those eligible for Type 1 - basic coverage coverage) who are pregnant Type 2 - prescription drug coverage - asylum seekers from moratorium countries whose refugee claim has been rejected - privately sponsored refugees not receiving government income support - basic coverage - successful asylum seekers awaiting permanent resident Type 3 - PHPS prescription drug status coverage - persons with a positive pre-removal risk assessment awaiting permanent resident status - asylum seekers - asylum seekers whose refugee claim has been rejected - PHPS basic coverage - asylum seekers whose refugee claim is suspended Type 4 - PHPS prescription drug - applicants of a pre-removal risk assessment who are coverage ineligible to make or have not made a refugee claim - medical services and prescription drugs provided Type 5 - persons under immigration detention onsite in detention or offsite when medically necessary - asylum seekers who have withdrawn or abandoned their No Coverage refugee claim

While this policy reversal arguably represented a positive development for many humanitarian migrants, the government’s decision to create a brand-new coverage scheme instead of reinstating the pre-2012 IFHP was found to have exacerbated the confusion among health care practitioners, and in turn left many entitled migrants being denied services by mistake.124 Not to mention, the level of health care coverage remained unchanged for several groups of IFHP beneficiaries. Unsuccessful asylum seekers whose removal order was not stayed, people whose asylum claim was deemed withdrawn, abandoned or suspended, and applicants of a pre-removal risk assessment all continued to have virtually no health care entitlement in Canada. It was not

124 See e.g. Ritika Goel, “What You Need to Know about Canada’s Refugee Health Program” Huffington Post (25 December 2014), online: ; Valentina Antonipillai et al, “Impacts of the Interim Federal Health Program Reforms: A Stakeholder Analysis of Barriers to Health Care Access and Provision for Refugees” (2017) 108:4 Can J Public Health e435.

55 until April 1, 2016, following a change in government, that the IFHP was fully restored to its pre-2012 form.125

Notably consistent during this period of policy instability has been the health care entitlement of recognized refugees, victims of human trafficking and individuals that are under immigration detention. As other humanitarian migrants’ health care coverage fluctuates, theirs have remained essentially on par with the level of health care benefits available to Canadian citizens. This policy consistency seemingly corresponds to the standard practice across Western liberal democracies. In all E.U. member states as well as Australia, New Zealand, and the U.S., recognized refugees are entitled to the same health care protection as citizens.126 Migrants in Australia, New Zealand, and the U.S. that are found to have been trafficked are also granted equal rights to health care as nationals.127 In Europe, the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) requires all signatories to assist victims of trafficking by facilitating their access to at least emergency medical treatment.128 A number of countries have interpreted their obligations under ECAT liberally and extended a broader range of public health care to trafficked persons.129 Likewise, in most Western countries, asylum seekers that are under administrative detention in principle can seek free health care beyond emergency medical services. Admittedly, in practice, the adequacy and quality of such health care have often been found wanting.130

125 IFHP Policy, supra note 20.

126 Paola Pace & Sam Shapiro, Migration and the Right to Health in Europe, ed. by María José Peiro & Roumyana Benedict (Brussels: International Organization for Migration, 2009) at 12; Ignacio Correa-Velez, Sandra M. Gifford & Sara J. Bice, “Australian Health Policy on Access to Medical Care for Refugees and Asylum Seekers” (2005) 2 Australia & New Zealand Health Policy 23; NZ Eligibility Direction, supra note 72, ss B10-B11; PRWORA, supra note 76, § 1613(b).

127 Order Under Subsection 6(1) of the Health Insurance Act 1973 (Cth.); NZ Eligibility Direction, supra note 72, s B12; Services Available to Victims of Human Trafficking: A Resource Guide for Social Service Providers (Washington, D.C.: Department of Health and Human Services, 2012).

128 16 May 2005, C.E.T.S. No. 197 (entered into force 1 February 2008), art 12.

129 See e.g. The National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, s 16 [2015 NHS Charging Regulations]; Measures Against Trafficking in Persons, Law No. 228 of 11 August 2003, art 13 (Italy).

130 See e.g. Correa-Velez et al, supra note 126. For a series of reports on the condition of detention facing asylum seekers in Europe, see “Country Reports on Asylum in 23 Countries” (last visited 13 February 2020), online: Asylum Information Database .

In contrast to their general consensus on the health care entitlement of recognized refugees, trafficked persons and immigration detainees, Western liberal democracies appear to hold more mixed views on what the appropriate health care coverage should be for asylum seekers who are waiting for their request for protection to be decided. Some countries such as Italy, New Zealand, and the U.K. allow asylum seekers to access their respective public health care systems on equal terms as their citizens.131 Other countries, however, place certain limits on the public health care benefits that asylum seekers may receive. For example, in Sweden, while asylum-seeking children enjoy the full extent of public health care coverage, adult asylum seekers are only eligible for emergency treatment and “care that cannot be deferred.”132 In Germany, depending on the state they reside in, for a maximum of 15 months following registering their asylum claim, asylum seekers’ health care entitlement is restricted to emergency care, treatment for acute diseases and pains, care during pregnancy and childbirth, vaccinations, and preventive checkups.133 Further care may be granted to these newly arrived asylum seekers upon formal request if it is considered essential to secure life or health.134 In the same vein, in the U.S., asylum seekers are generally excluded from Medicaid and CHIP. Although they could purchase health care insurance in exchanges and qualify for premium-related tax credits if they are permitted to work, by law, such work authorization cannot be issued to asylum seekers until they have been in the country for at least six months.135 In the past, Australia similarly withheld the rights to receive public health care and to work from asylum seekers that did not file their refugee claims within forty-five days of their arrival. But since July 1, 2009, all asylum seekers regardless of when

131 Consolidated Text on Immigration, Legislative Decree No. 286 of 25 July 1998, art 34 (Italy); NZ Eligibility Direction, supra note 72, ss B10-B11; 2015 NHS Charging Regulations, supra note 129, s 15.

132 Dan Biswas et al, “Access to Health Care for Undocumented Migrants from a Human Rights Perspective: A Comparative Study of Denmark, Sweden, and the Netherlands” (2012) 14 Health & Hum Rts 49 at 51-52.

133 Laura Frank et al, “Health and Healthcare Provision to Asylum Seekers and Refugees in Germany” (2017) 2:1 J Health Monitoring 22 at 33.

134 Ibid.

135 Brian Jacek & Kristina Hon, “At Least Let Them Work”: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States (N.p.: Human Rights Watch, 2013) at 15-16.

57 their refugee applications are filed are granted full access to the country’s health care insurance.136

Policies among Western liberal democracies with respect to health care entitlement of asylum seekers whose claim for protection has been refused exhibit similar heterogeneity. At one end of the spectrum, Switzerland exemplifies a country where unsuccessful asylum seekers are entitled to comparable health care benefits as citizens, much like the current situation in Canada following the full reinstatement of the IFHP. Pursuant to legislative amendments introduced in July 2011, local authorities in Switzerland must enroll unsuccessful asylum seekers in the public health care insurance scheme and pay their premiums until they depart from the country.137 In comparison, health care coverage for unsuccessful asylum seekers in parts of the U.K. is more limited and therefore more closely resembles the state of affairs in Canada during the years of IFHP cuts. As unsuccessful asylum seekers are considered not “ordinarily resident” in England, they lack the right to access secondary care at no cost there.138 But they may continue to obtain free primary care at their general practitioners’ discretion and, for those with low income, qualify for financial assistance with certain health care-related expenses (e.g., prescription drugs, dental care, and eye care).139 Moving further down the health care entitlement continuum, unsuccessful asylum seekers in Australia are afforded virtually no public health care protection. Asylum claimants who have received a negative decision in the first instance are excluded from Australia’s public health care insurance program. However, those facing financial hardship may apply for monetary support through the Asylum Seeker Assistance Scheme (“ASAS”) to cover

136 Harriet Spinks, “Abolition of the 45 Day Rule” (last visited 13 February 2020), online: Parliament of Australia .

137 Veronika Bilger et al, Health Care for Undocumented Migrants in Switzerland: Policies, People, Practices (Vienna: International Center for Migration Policy Development, 2011), n. 50.

138 R(YA) v. Secretary of State for Health, [2009] EWCA Civ 225. For unsuccessful asylum seekers’ right to access secondary care in other parts of the U.K, see “Refused Asylum Seekers: Entitlement to NHS Maternity Care” (last visited 13 February 2020), online: Maternity Action .

139 Rosalind Bragg & Rayah Feldman, “‘An Increasingly Uncomfortable Environment’: Access to Health Care for Documented and Undocumented Migrants in the UK” in Rachel Sabates-Wheeler & Rayah Feldman, eds, Migration and Social Protection: Claiming Social Rights Beyond Borders (New York: Palgrave Macmillan, 2011) 143 at 154- 155.

58 some health care costs while their negative decision is being reviewed by a tribunal. If the outcome of the administrative review of their asylum claim remains negative, their eligibility for

ASAS generally ceases, too.140

To sum up, international migrants’ health care entitlement in Canada is a function of both immigration controls and health care eligibility regulations. With respect to the latter, which some commentators have termed “welfare controls,”141 a review of current legislations shows that the provinces tend to interpret the provisions of the CHA narrowly. As a result, Medicare access of international migrants whose legal status in Canada is more precarious is frequently restricted, especially if they are not in the country for employment purposes. Although certain humanitarian migrants that are ineligible for Medicare can qualify for the IFHP as an alternative, recent policy changes have contributed to the confusion surrounding whom and what the IFHP covers, leaving some people without adequate health care protection in practice.142 Results from a scan of migrant health care policies of other Western liberal democracies reveal that similar health care coverage gaps between international migrants and citizens are common but they are not unavoidable. Depending on the specific migrant groups that are in question, various countries have elected to provide international migrants health care benefits that are comparable to what their citizens receive. In the ensuing section, I will reinforce this point by demonstrating that even in Canada, disparities in health care entitlement between migrants and citizens have not always been as pronounced as they are presently.

2.4 Retrenchment of Migrant Health Care Entitlement in Recent Decades

Contrary to the heavy lifting that it is now doing, Canada’s welfare control machinery was relatively inactive in the early days of Medicare. At that time, once international migrants managed to get past border control and related hurdles, their access to public health care was

140 Correa-Velez et al, supra note 126.

141 Ed Mynott, Beth Humphries & Steve Cohen, “Introduction: Locating the Debate” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 1.

142 YY Brandon Chen, Vanessa Gruben & Jamie Chai Yun Liew, “‘A Legacy of Confusion’: An Exploratory Study of Service Provision under the Reinstated Interim Federal Health Program” (2018) 34:2 Refuge 94.

59 greatly facilitated by Medicare’s universalistic tenor. Although Medicare applicants must still fulfill certain residency requirements stipulated by respective provinces, the rules that existed then were fairly lax in comparison with their contemporary iterations. Even undocumented migrants that were legally disqualified from Medicare were known to have occasionally succeeded in obtaining Medicare coverage.143 It was not until circa 1985 that the provinces started to scrutinize prospective Medicare applicants’ eligibility more closely, and in the process, international migrants’ health care entitlement became gradually scaled back. Over the years, as the foregoing section shows, the availability of public health care to international migrants in Canada has become more contingent on the administrative statuses that migrants are assigned at border entry, their labour market engagement and, for humanitarian migrants, the perceived authenticity of their claims. In other words, whereas during the first decades of Medicare, immigration controls acted as the primary barrier to migrants’ access to the Canadian health care system, today this fence is buttressed by health care eligibility rules that separate migrants into those who are deemed self-sufficient, desirable and deserving, and those who are characterized as high users of public resources, fraudsters and undeserving. I will return to this bifurcation of international migrants in the next chapter and situate it within the broader neoliberal paradigm.

In this section, I will illustrate international migrants’ decreasing health care entitlement in Canada by examining two specific instances of legislative change: Ontario’s Medicare reform in the early 1990s, as well as the nationwide expulsion of asylum seekers from Medicare that began in 1986 and culminated in the introduction of the IFHP a decade later. Particularly, I hope to highlight the increasing association between migrants and health care frauds in the public discourse and the resultant seepage of the immigration control agenda into governments’ decision-making with respect to migrant health care. As in the previous section, I will supplement my review of the Canadian experiences with a brief discussion of comparable policy developments in other Western liberal democracies in recent decades. Again, my main point is that the health care coverage gaps now facing international migrants in many Western receiving countries are not a necessary by-product of the liberal democratic political structure, but the outcome of deliberate policy choices whose appropriateness demands in-depth evaluation.

143 For instance, in Irshad, supra note 71, one of the applicants suing to have their Ontario Medicare coverage restored was described by the court as lacking any legal status in the country.

2.4.1 Ontario’s Medicare Reform

Relative to their present-day counterparts, eligibility rules for the Ontario Health Insurance Plan (“OHIP”) were much more lenient before the early 1990s. Pursuant to the province’s Health Insurance Act in effect at the time, OHIP coverage was prima facie available to all residents irrespective of their citizenship and immigration statuses provided that they had up-to-date authorization to stay in Canada, were ordinarily present in Ontario and were not tourists, transients or visitors.144 To satisfy the ordinary presence requirement, OHIP beneficiaries only needed to spend at least four consecutive months in Ontario every year so long as they made the province their permanent home.145 Once qualified residents registered for OHIP, they were immediately issued a unique health number that they and their dependents could use to access publicly-financed health care services without having to undergo any waiting period.146

To characterize pre-1990 OHIP eligibility rules as lenient, however, is not to suggest they were open-ended in nature. At least on paper, undocumented migrants, genuine visitors to Canada and persons who did not ordinarily reside in Ontario were clearly excluded from the program. In practice though, the province’s under-enforcement of the eligibility rules as well as its failure to properly track OHIP beneficiaries who had either left the province or passed away meant that some people that lacked entitlement were actually able to secure public health care coverage. A report published by the provincial Auditor General in 1987 identified nearly 25 million active OHIP numbers in the system despite Ontario’s population of nine million at the time and warned that such discrepancies were ripe to fraud.147 Indeed, contemporaneous news media regularly featured stories about suspected misuses of OHIP by ineligible people, including: Quebec residents who hoped to receive services not covered at home by obtaining OHIP coverage using

144 See Irshad, ibid. at para. 19.

145 Kristin Goff, “Time Out: Ontario ‘Snowbirds’ Fly Afoul of OHIP’s Tougher Residency Rules” Ottawa Citizen (14 April 1992) D1.

146 As health numbers were assigned to OHIP beneficiaries on a per household basis, children usually were covered under their parents’ plan and would only receive their own health numbers upon leaving home, turning twenty-one or acquiring a job. See “Ontario Considering Issuing Individual Health ID Numbers” Ottawa Citizen (13 January 1988) A3.

147 “Provincial Auditor’s Report: Archer Lambastes OHIP for Outdated File System” Windsor Star (25 November 1987) A12.

61 their Ontario work addresses; expatriates who retained their health numbers and used them to acquire out-of-country treatment; uninsured U.S. citizens who sought free care in Canada with OHIP numbers that they purchased on the black market; and foreign visitors who borrowed the health numbers of their Canadian relatives to receive emergency care.148

These reports of health care fraud ultimately prompted the provincial government to tighten OHIP’s eligibility criteria in the early 1990s. First, to allow more effective monitoring of each beneficiary’s health service utilization, the government decided to assign a health number to each insured person as opposed to each household. The health number, along with the beneficiary’s name, would be printed on a new OHIP card to be introduced, which must be presented at the point of service access.149 Second, beneficiaries must now reside in the province for at least six months per year in order to maintain their OHIP coverage.150 To verify their ordinary presence in Ontario, random audits involving government sending out letters to beneficiaries and demanding proof of residency within certain response time were conducted. Third, as of early 1993, the government no longer reimbursed health care providers for claims submitted with an OHIP number that turned out to be invalid or if the birth date of the patient did not match the one associated with the OHIP number in its records.151

Notwithstanding these measures, concerns about the inflated number of active health cards relative to the population of Ontario and the concomitant worries about OHIP fraud persisted. In particular, an internal government study conducted in 1993 estimated that fraudulent claims were costing Ontario’s health care system $284 million a year.152 Among other things, it found that roughly 60,000 OHIP registrants might in fact be non-residents, 26% of all addresses provided

148 See e.g. Chris Hall, “Bill for Ottawa OHIP Faker: $30,000” Ottawa Citizen (14 March 1990) B1; Derek Ferguson, “OHIP Cheats Got Posh Cures at U.S. Clinics” Toronto Star (15 March 1990) A12; Maria Bohuslawsky, “Hospitals Helpless Against OHIP Fraud Artists” Ottawa Citizen (20 March 1990) B2.

149 “All Family Members to Get Individual OHIP Cards Featuring Health Histories” Ottawa Citizen (22 March 1990) A5.

150 Carol Goodwin, “OHIP policy ‘seals’ people in province, pair complain” Kitchener-Waterloo Record (5 June 1992) B1.

151 Ellen van Wageningen, “Fighting fraud: The Ontario Health Ministry is seeking ways to police health-card abuse” The Windsor Star (21 August 1993) E1.

152 Kevin Donovan, “Health card abuse called ‘rat’s nest’” The Windsor Star (18 August 1993) A1.

62 by OHIP beneficiaries were incorrect, and each year more than 500 OHIP cards belonging to deceased residents remained in use. Notably, the study also called into question the OHIP eligibility of nearly 50,000 immigrants and refugees who allegedly lacked proper documentations, criticized the extension of OHIP coverage to 30,000 foreign nationals that were facing deportation from Canada, and denounced foreign workers, international students and their families for making substantial use of Medicare.153 In so doing, the study appeared to conflate two distinct issues under the rubric of fraud. On the one hand, it raised the alarm about individuals without legal entitlement being able to secure OHIP coverage through illegitimate means. On the other hand, it took aim at certain foreign residents that were legally entitled to OHIP benefits for their supposedly problematic health-seeking behaviors. Compared with the former, the latter was arguably much more removed from the initial concerns that thrusted the topic of health care fraud in the limelight, which were about the mismatch between active OHIP numbers and actual residents in the province. Painting both issues with the same brush, therefore, represented a discursive sleight of hand where foreign residents who were legitimate OHIP beneficiaries became the new focal point of a struggling government campaign to curb unauthorized health care access. In other words, what started out as a criticism of the Ontario government’s poor management of its health care registration system was transformed into a condemnation of international migrants’ purported abuse of their OHIP coverage. This discursive shift, facilitated by the sweeping language of fraud, saw international migrants increasingly portrayed in the popular media not as rightful OHIP beneficiaries, but as health tourists who reportedly moved to Canada only to receive free health care or to give birth to children who would be granted Canadian citizenship.154

In 1994, amidst an escalating debt load and recurring budget deficits, public concerns about Medicare fraud in Ontario came to a head and caused government to introduce yet another series of restrictions on who could qualify for OHIP. Reflecting the prevailing narrative, a good number of these new measures targeted international migrants specifically. Both foreign students and asylum seekers were expressly excluded from OHIP. With respect to the former, the Health

153 Rod Mickleburgh, “Rae vows to counteract health-care abuse” The Globe and Mail (19 August 1993) A4.

154 See e.g. Matt Maychak, “Foreigners Exploit Health Cards: MPP” Toronto Star (22 October 1992) A17; van Wageningen, supra note 151.

Minister at the time argued that since Ontario students continued to be covered by OHIP while studying abroad, international students in the province should “expect the same kind of give-and- take.”155 As for asylum seekers, Ontario insisted that the financial responsibility for their health care expenses ought to have rested with the federal government all along and it was time for

Ottawa to pay its bills.156 While the government initially also eliminated the OHIP coverage of all temporary foreign workers and their dependents, it later reinstated the benefits of migrant workers that held a “closed” employment permit, as well as their families, if they had proven plans to stay in the province for at least three years.157 According to government officials, the policy reversal was motivated by a desire to encourage migrants with steady jobs to settle in Ontario on a long-term basis. To the extent that this policy objective accorded with Canadian immigration law’s valorization of migrants perceived as more capable of self-sufficiency, it signalled a growing convergence between immigration and welfare controls in the country.

Other elements of Ontario’s Medicare reform in 1994, while facially neutral, also affected international migrants’ OHIP eligibility disproportionately. For example, the government decided to follow the lead of British Columbia and New Brunswick and impose a three-month wait on all new OHIP applicants.158 As I explained earlier, such waiting periods tended to impede the health care access of newcomers to Canada much more because, unlike people moving to Ontario from another province, they lacked an existing public health care insurance plan to fall back on. Similarly, migrants also bore the brunt of the adverse consequences of the government’s move toward an individualized OHIP eligibility assessment model. In an effort to combat fraudulent use of OHIP cards by ineligible persons, the government introduced a brand- new health card with strengthened security features and required each Ontario resident to obtain the card by way of re-registering for OHIP.159 Whereas in the past, dependents of an OHIP beneficiary could qualify and register for the program automatically, they must now establish

155 “Ontario will Curb OHIP for Visiting Workers, Students” Toronto Star (2 April 1994) A9.

156 Craig McInnes, “OHIP Coverage for Foreign Students, Workers Dropped” The Globe and Mail (1 April 1994) A3.

157 Caroline Mallan, “Province Reverses Another OHIP Cut” Toronto Star (23 July 1994) A11.

158 Elizabeth Payne, “Ontario Tightens OHIP Rules” Ottawa Citizen (2 April 1994) A1.

159 Lisa Priest, “Photo OHIP Cards Meant to Combat Fraud” Ottawa Citizen (4 May 1994) A3.

64 eligibility in their own right. This meant that some migrants in mixed-status families, such as foreign spouses of Canadians who were in the country on visitor visas while awaiting the results of their permanent residency applications, were no longer entitled to OHIP.

In the wake of these policy changes, several attempts were made by international migrants to challenge the constitutionality of their health care rollback in court but all were to no avail. Insofar as the disproportionate impact of the 1994 reform on migrants was acknowledged by the judiciary, it was repeatedly found to be a permissible differential treatment under the law and therefore not discriminatory in nature.160 And as migrants stripped of OHIP coverage could still in theory access emergency care as well as life-saving medications through safety net programs, their rights to life and personal security were ruled to have not been breached.161 Moreover, on one occasion, a court held that even assuming migrants’ constitutional rights were violated, the impugned policy changes were still justifiable in light of the fiscal challenges that the province was facing and the cost savings that the OHIP reform promised.162 These judicial decisions not only had the immediate effect of upholding Ontario’s 1994 reform, but also served to normalize the health care disparities between citizens and migrants in Canada in general by forming a body of precedents that greatly complicated migrants’ future legal challenges against their health care disentitlement.163

Notwithstanding the judiciary’s widespread hesitancy to interfere with the changes to OHIP, however, it would be an overstatement to suggest that there was a consensus of opinion among judges respecting the province’s increasingly restrictive migrant health care policies. In a case involving a medically inadmissible child, Raja, who was granted entry into Canada out of humanitarian considerations but was denied OHIP coverage in the wake of the 1994 legislative reform, Justice Doherty of the Ontario Court of Appeal made the following remarks in the obiter:

160 See e.g. Irshad, supra note 71; Clarken v Ontario (Health Insurance Plan) (1998), 109 OAC 363 [Clarken].

161 S.P. v. Ontario Health Insurance Plan (19 August 1999), 5399E (HSARB).

162 Clarken, supra note 160.

163 See e.g. Toussaint v Ontario (Minister of Health and Long-Term Care), 2010 HRTO 2102; CDRC, supra 122.

I must observe that the present interface between the complex immigration process … and the determination of OHIP eligibility … is not entirely satisfactory. It seems inherently contradictory, if not cruel, to permit a young boy like Raja to enter Canada on compassionate grounds so that he might live with the rest of his family who have been allowed to settle in Canada, while at the same time not taking cognizance of Raja’s need to access expensive medical services that can, to some degree, at least alleviate his severe physical disability. While I have found no constitutional violation, I would think that the federal and provincial authorities could work together to find some way to extend our country’s compassion beyond permission to enter Canada to include access to the medical services available through OHIP to

persons like Raja.164

This passage revealed that the appellate court was neither blind nor completely agreeable to the mutually enforcing relationship that was emerging between Canada’s immigration and welfare controls. While it was unable to find any constitutional wrong with the OHIP reform, it nevertheless was morally troubled by the new health care eligibility rules that effectively did the bidding of Canada’s immigration system by withholding public health care access from foreign residents that were normally medically inadmissible. As such, although unequal Medicare entitlement between citizens and migrants had become the new policy reality by this time, arguably, its ethical legitimacy remained very much a live issue.

2.4.2 Asylum Seekers’ Exclusion from Medicare

Asylum seekers’ successive removal from provincial Medicare programs across the country between circa 1985 and circa 1995 represented another instance of migrant health care retrenchment in Canada in recent decades. Like the OHIP reform in the early 1990s, this policy development was aided by both an increasingly popular narrative that portrayed asylum seekers as abusers of the health care system, and a concomitant rise in the Canadian society’s comfort level in relying on Medicare eligibility rules as reinforcement of its immigration control agenda.

164 Irshad, supra note 71 at para 162.

While the IFHP constitutes the primary source of asylum seekers’ public health care protection in Canada today, up until the mid-1980s, asylum seekers in all provinces except Alberta received public health care insurance through Medicare.165 In 1986, British Columbia became the first among the Canadian provinces that previously provided Medicare coverage to asylum seekers to reverse their policies. The Health Minister of British Columbia at the time offered two interrelated justifications for the policy decision. First, he claimed that Medicare was “paid for by the citizens of Canada for the citizens of Canada and those who [were] eligible for that status,” and for the purposes of consistency and equality, all visitors to the country, including asylum seekers, should be excluded from Medicare irrespective of their circumstances.166 Second, he contended that if noncitizens such as asylum seekers were to be given public health care, it should be the federal government, rather than the provinces, that was responsible for funding such health care benefits. He argued that it was “improper for Canada to permit a person into the country who then require[d] extensive medical care and then to say to the provinces:

‘Pick up the tab’.”167 In terms of accuracy and coherence, the Health Minister’s assertions were highly contestable. Not only did many noncitizens financially contribute to Medicare through both direct and indirect taxations, but also even if Medicare was indeed intended for citizens and citizens-in-waiting exclusively, a sizable number of asylum seekers surely fell into the latter category. Nevertheless, the provincial government’s message was clear. Asylum seekers were seen as visitors who were in Canada mainly for the pursuit of free health care, and insofar as the immigration system had failed to weed out these health tourists, it is the federal government that must assume the financial consequences.

British Columbia’s decision to eliminate asylum seekers’ Medicare coverage triggered a domino effect across the country. By the time that Ontario moved to eliminate asylum seekers’ OHIP coverage in 1994, Quebec was the only province left that still granted Medicare entitlement to

165 “B.C. Risks Reputation” The [Montreal] Gazette (14 April 1986) B2. Alberta briefly provided Medicare coverage to asylum seekers between 1989 and circa 1995 when the federal government assumed the responsibility of refugee health care financing. See Alan Boras, “Refugees Get Medicare” Calgary Herald (19 December 1989).

166 British Columbia, Legislative Assembly, Debates (Hansard), (10 April 1986) at 7679 (Jim Nielsen).

167 Ibid.

this population.168 And even that was discontinued in 1996.169 Throughout this process, the imagery of asylum seekers qua health tourists continued to be conjured up by the provinces as a cause for concern. For example, as I have described above, Ontario’s withdrawal of asylum seekers’ OHIP coverage was part of a reform package intended to combat health care frauds ostensibly committed by immigrants and refugees. In the same vein, Quebec’s move to strip off asylum seekers of their Medicare entitlement was in part dressed up by the government as a last resort to correct an unfair financial burden of having to provide for asylum seekers who came from countries that supposedly did not produce genuine refugees.170 As such, the retrogression of asylum seekers’ health care entitlement arguably reflected to what Anna Pratt and Mariana Valverde identified as “an incremental but steady redefinition” in Canada during the last decades of the twentieth century “through which the ‘deserving victim’ of international human rights law came to be replaced by the fraudulent or even downright criminal ‘bogus refugee/welfare cheat’.”171 Furthermore, to the extent that the specter of fraudulent asylum seekers also prompted the federal government to tighten the country’s refugee rules,172 the changes in asylum seekers’ Medicare eligibility again brought the logic of Canada’s welfare controls ever closer in line with that of its immigration regulations.

As a response to asylum seekers’ preclusion from Medicare, the federal government began assuming the health care expenses of these individuals in cases of medical emergency. But it was not until 1994 when it was confronted with Ontario’s impending OHIP reform, which threatened to leave a majority of asylum seekers in the country medically uninsured, that the federal government formally agreed to take over the health care responsibility respecting these humanitarian migrants.173 Initially, services rendered to asylum seekers were reimbursed through

168 Lisa Priest, “Who Pays Refugee Health Costs?” Toronto Star (15 July 1993) A23.

169 Philip Authier & Samana Siddiqui, “Refugee Claimants to Lose Health Benefits” The [Montreal] Gazette (15 June 1996) A1.

170 Ibid.

171 Anna Pratt & Mariana Valverde, “From Deserving Victims to ‘Masters of Confusion’: Redefining Refugees in the 1990s” (2002) 27 Can J Sociology 135 at 138.

172 See e.g. Mary Williams Walsh, “A Lamp to the Nations Flickers” Los Angeles Times (18 June 1992) 1; “Canada Gets Tough on ‘Benefits Shoppers’” The Hamilton Spectator (4 January 1993) A3.

173 “Ottawa to Pay Medical Bills for Refugee Claimants” Kingston Whig-Standard (13 June 1994) 3.

68 the Non-Insured Health Benefit Program under Health Canada, but since April 1995, this has been done through the IFHP, which is administered by Citizenship and Immigration Canada

(now known as Immigration, Refugee and Citizenship Canada).174 The transfer of the asylum seeker health care program to the federal immigration portfolio made explicit the ongoing encroachment of border management-related calculus on Canadian refugee health care policies. To this day, as evidenced by recent IFHP cutbacks where the tropes of “bogus refugees” and “health tourists” are routinely employed by immigration officials to stir up public panic and drive policy changes,175 the reasoning of immigration control continues to exert considerable influence over the Canadian government’s decision-making regarding asylum seekers’ health care entitlement.

In spite of the introduction of the IFHP as an alternative source of health care coverage, asylum seekers’ exclusion from Medicare must be properly recognized as a diminution in their health care security. Whereas Canadian Medicare is designed to cover both the rich and the poor so long as they are lawful ordinary residents, the IFHP is a means-tested program reserved only for asylum seekers with demonstrated financial needs and no access to other health insurance. As such, in theory, not all asylum seekers who were previously entitled to Medicare would qualify for the IFHP.176 Moreover, IFHP beneficiaries frequently encounter structural barriers to their service access. This was so even before recent changes made the program all the more confusing for both patients and service providers to navigate. Health care practitioners were known to not accept IFHP patients because they either were unfamiliar with the program or found the program’s reimbursement process too cumbersome and time-consuming.177 It was particularly difficult for IFHP beneficiaries to access certain medical procedures and devices that were

174 IR3, supra note 115 at 4-5.

175 See e.g., Tobi Cohen, “‘Bogus Refugees’ Sap Health Care” Vancouver Sun (1 August 2012) B2; Julia Belluz, “Health-care Coverage for Refugees is About to Change in Canada” Mclean’s (28 June 2012), online: .

176 But see Audit of the Control Framework for the Interim Federal Health Program (Ottawa: Citizenship and Immigration Canada, 2004) at n. 2.

177 Baukje Miedema, Ryan Hamilton & Julie Easley, “Climbing the Walls: Structural Barriers to Accessing Primary Care for Refugee Newcomers in Canada” (2008) 54 Can Family Physician 335; Marie Mckeary & Bruce Newbold, “Barriers to Care: The Challenges for Canadian Refugees and Their Health Care Providers” (2010) 23:4 J Refugee Studies 523 at 535.

69 deemed high-cost (e.g., organ transplantation), elective (e.g., rhinoplasty), or supplementary (e.g., hearing aids and mobility aids) as they required prior approval from appropriate authorities.178 Even when asylum seekers were able to find a willing doctor and secure all the necessary pre-authorizations, it was not uncommon for them to receive a bill from health care providers who became frustrated with the long delay in getting reimbursed by the IFHP for services rendered, a practice that would have been prohibited under Medicare.179 Thus, in terms of facilitating health care access, the IFHP falls short of being a true equivalent of Medicare, and asylum seekers’ inclusion therein, even having regard to its salutary effects, still represented a benefit cut relative to the status quo ante.

In summary, differential health care entitlement on the basis of citizenship and immigration statuses is a relatively recent development in Canada. In the early decades of Canadian Medicare, many foreign residents including temporary migrants and asylum seekers actually enjoyed the same level of coverage as citizens. It was not until the mid-1980s that migrants’ health care benefits started to be retrenched by government in an attempt to cater to an increasingly xenophobic Canadian populace. Through a discursive sleight of hand that saw foreign residents transformed into health tourists, migrants were made a scapegoat to quell public concerns about ballooning health care outlays and alleged health care fraud. As such, Canada’s contemporary migrant health care policies largely represented an outgrowth of social panic and political machinations. This fact, I argue, highlights the need for the determination of migrants’ health care entitlement to be greater informed by principles of justice, hence my present project.

2.4.3 Similar Policy Developments in Other Western Democracies

Having explored the historical changes in migrants’ health care entitlement in Canada, I will briefly examine in this subsection the retrogressive changes that have been made to migrant health care policies in other Western liberal democracies in recent decades. More than detailing

178 Anita Gagnon, “The Responsiveness of the Canadian Health Care System Towards Newcomers” in Pierre- Gerlier Forest, Gregory Marchildon & Tom McIntosh, eds, Changing Health Care in Canada: Romanow Papers, Vol. 2 (Toronto: University of Toronto Press, 2004) 349 at 361. For lists of services that required pre-authorization, see Interim Federal Health Program: Information Handbook for Health Care Providers (Edmonton: FAS Benefit Administrators, 2005) at 9; 2011 Infosheet, supra note 116.

179 Miedema et al, supra 177 at 336.

70 the trajectory of these policy shifts, my real interest here lies in unpacking the narratives that helped give birth to them. Specifically, relying on policy developments in the U.K. and the U.S. as examples, I will show that, as in Canada, a renewed emphasis on migrants’ self-sufficiency, growing concerns about “health tourism,” and the steady infiltration of the immigration-control logic in health and social care have together caused international migrants’ health care to be curtailed in some Western countries in recent times. What I hope to underline is the prominence of cost containment and immigration deterrence as rationales for denying migrants health care coverage. I will return to these arguments and scrutinize them more closely in the upcoming chapters as I embark on the normative analysis of international migrants’ health care entitlement vis-à-vis that of citizens.

I begin with a review of relevant policy changes in the U.K. In theory, the NHS has always been intended for individuals that reside in the country on an ordinary basis. Various iterations of its enabling legislation since 1949 have authorized the government to introduce regulations to recover health care costs from “persons not ordinarily resident” in the U.K., which would effectively strip of these individuals’ public health care coverage.180 However, it was not until

1982 that the first of such regulations were put in place.181 Although international migrants, especially those who were racialized, already faced racist administrative practices that frustrated their service utilization long before,182 the promulgation of the NHS charging scheme marked the beginning of their formal exclusion from the public health care system. Subsequent amendments to the charging regulations would generally follow this exclusionary trend and render migrants’ health care entitlement in the U.K. ever more limited. Notably, in 1989, migrants who were not ordinarily resident lost their public coverage for treatment relating to HIV infection.183 In 2004, unsuccessful asylum seekers and undocumented migrants were made

180 See e.g., National Health Service (Amendment) Act, 1949 (U.K.), 12, 13 & 14 Geo VI, c 93, s 17; National Health Service Act 1977 (U.K.), 1997, c 49, s 121.

181 The National Health Service (Charges to Overseas Visitors) Regulations 1982, SI 1982/795.

182 Debra Hayes, “Outsider Within: The Role of Welfare in the Internal Control of Immigration” in Janet Batsleer & Beth Humphries, eds, Welfare, Exclusion and Political Agency (New York: Routledge, 2000) 63 at 66-68.

183 1989 NHS Charging Regulations, supra note 58, s. 3(d). But see U.K., Department of Health, HIV Treatment for Overseas Visitors: Guidance for the NHS (Crown Copyright, 2012).

ineligible for many NHS services.184 The 2011 charging regulations expressly bestowed a duty on relevant NHS bodies to inquire about patients’ health care entitlement and to impose and recover payments where appropriate.185 And under the current regulations, among other things, NHS service providers are required to charge relevant migrants at a rate equal to one-and-a-half times the standard fees.186

Officially, the introduction of the charging regulations in 1982 was meant to combat the abuse of the NHS by foreign nationals. But there was little evidence that such abuse was ever a problem in the U.K.187 Rather, the establishment of the charging scheme was considered by many to be part and parcel of a systematic governmental effort dating back to the 1960s to stem the primary immigration of racialized people who were commonly portrayed as diseased and a burden on public coffers.188 The Immigration Act 1971, for example, virtually eliminated the right of commonwealth citizens from the Caribbean, the Indian subcontinent, and Africa to remain in the U.K., whereas the British Nationality Act 1981 significantly narrowed the scope of jus soli such that U.K.-born children whose parents were not British citizens or permanent residents would no longer be granted citizenship automatically.189 The NHS charging regulations, to the extent that their adverse effect was disproportionately felt by racialized migrants,190 similarly functioned to exclude these unwanted individuals. They, as Paul Gordon put it, represented another response to the “black problem,” whereby the country’s immigration controls were expanded inward to not

184 The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2004, SI 2004/614.

185 2011 NHS Charging Regulations, supra note 58, s 3.

186 2015 NHS Charging Regulations, supra note 129, s 7(3).

187 Paul Gordon, “Medicine, Racism and immigration control” (1983) 3: 7 Critical Soc Policy 6 at 17.

188 Debra Hayes, “From Aliens to Asylum Seekers: A History of Immigration Controls and Welfare in Britain” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 30 at 39. For a general discussion of how immigration and citizenship policies were used in postwar Britain to restrict the entry of racialized people, see Ranjit Sondhi, “Immigration and Citizenship in Postwar Britain” in C. Fried, ed, Minorities: Community and Identity (Berlin: Springer-Verlag, 1983) 255.

189 Debra Hayes, “History and Context: The Impact of Immigration Control on Welfare Delivery” in Debra Hayes & Beth Humphries, eds, Social Work, Immigration and Asylum: Debates, Dilemmas and Ethical Issues for Social Work and Social Care Practice (New York: Jessica Kingsley, 2004) 11 at 14.

190 See e.g., Hayes, supra note 182 at 69.

only “keep[…] people out” but also “get[…] rid of people already here.”191 In other words, health care eligibility restrictions came to be used as a backup strategy to exclude undesirable migrants that should not have been allowed into the country in the first place. The hope was that by doing so, the lives of unwanted migrants in the U.K. would be so challenging and unpleasant that they would choose to leave of their own accord. This remains one of the governing logics behind the NHS charging regulations today.192

With the in-migration of commonwealth citizens all but ceased, by the 1990s the asylum system had become the main avenue of primary migration to the U.K., thus causing the government to redirect the focus of its immigration and welfare controls to asylum seekers.193 Successive legislation enacted in the U.K. between 1993 and 1999 not only complicated one’s ability to claim refugee protection, but also significantly curtailed asylum seekers’ entitlement to housing, child benefits, and social security.194 The imposition of the NHS charging rules to unsuccessful asylum seekers since 2004 was part of the same trend. As in the past, this health care cut was justified as a necessary measure to curb the misuse of NHS services by foreign nationals, or “health tourism” as it had been termed by this time. But once again, by the government’s own admission, there was little evidence beyond conjectures and speculations that indicated health tourism was actually a cause for concern in the U.K.195 This notwithstanding, the construction of health tourists as the bogeyman allowed politicians to bifurcate asylum seekers into those who were supposedly genuine and those who were bogus and bent on exploiting the health care system, and to cast all unsuccessful asylum seekers as the latter. Consequently, the preclusion from free NHS services of unsuccessful asylum seekers, now branded as morally undeserving,

191 Gordon, supra note 187 at 20.

192 See e.g., U.K., Home Office, Enforcing the Rules: A Strategy to Ensure and Enforce Compliance with Our Immigration Laws (London: Central Office of Information, 2007) at 17.

193 Alice Bloch, “A New Era or More of the Same? Asylum Policy in the UK” (2000) 13 Journal of Refugee Studies 29.

194 Asylum and Immigration Appeals Act 1993 (U.K.), 1993, c 23; Asylum and Immigration Act 1996 (U.K.), 1996, c. 49; Immigration and Asylum Act 1999 (U.K.), 1999, c 33.

195 See e.g., Nicholas Timmins, “Health Tourism Curbs: Patients May Have to Show Proof of Identity” Financial Times (30 July 2003) 4; Quantitative Assessment of Visitor and Migrant Use of the NHS in England: Exploring the Data (London: Prederi, 2013) at 27.

73 no longer just served as deterrence of undesirable migration. It took on the added significance as a matter of fairness to British citizens that were apparently being taken for a ride, as well as a prudent cost-saving policy in the face of growing health care demands. As one government official explained: “We have no problem with international visitors using the NHS as long as they pay for it—just as British families do through their taxes. These plans [to charge overseas visitors] will help recoup up to ₤500 million a year, making sure the NHS is better resourced and more sustainable at a time when doctors and nurses are working very hard.”196

Contemporaneous with the changes to migrant health care policies in Canada and the U.K., calls for the restriction of international migrants’ health care entitlement were also gaining ground in the U.S. As justifications, the push for migrant health care cuts in the U.S. similarly invoked the images of migrants as health tourists and a drain on public resources, and appealed for public spending reduction and more stringent immigration controls. At the state level, voters in California approved Proposition 187 in 1994, which, among other things, barred undocumented migrants from accessing public non-emergency health care and required health workers to report suspected undocumented persons to government officials.197 The Proposition, unofficially called the “Save Our State” initiative by its supporters, was billed as an answer to the economic woes that were facing California at the time. It painted a grave picture of a state besieged by lawbreaking migrants who were either taking jobs away from lawful residents or were undeservingly living off governmental support.198 In a manner that conflated the objectives of immigration controls and welfare restrictions, it vowed to deter unlawful immigration by eliminating public benefits as a pull factor, and promised to save the state $200 million in services rendered.199 Although Proposition 187 was eventually struck down by court for having unconstitutionally encroached on the federal jurisdiction over immigration,200 its passage in the

196 Haroon Siddique, “NHS to Charge Non-EU Patients 150% of the Cost of Treatment” The Guardian (15 July 2014) 11.

197 U.S., Cal. Initiative Statute Prop. 187, Illegal Aliens. Ineligibility for Public Services. Verification and Reporting, 1994.

198 Peter Schuck, “The Message of Proposition 187” (1995) 26 Pac. L.J. 989.

199 “Prop. 187 Approved in California” (1994) 1:11 Migration News 1, online: ; Stacey Colino, “The Fallout from Proposition 187” (1995) 22 Human Rights 16.

200 League of United Latin American Citizens v Wilson, 997 F Supp 1244 (CD Cal 1997).

74 first place revealed the level of sympathy harbored by the American public for the anti- immigrant rhetoric that undergirded the ballot initiative. Such a popular sentiment would embolden the U.S. federal government to introduce its own measures to retrench migrants’ rights and benefits.

In 1996, the U.S. Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”). While its main thrust was to overhaul the social assistance regime in the country, the legislation also contained a slew of provisions that restricted international migrants’ eligibility for federally funded means-tested programs, including health care. For example, the Act categorically disqualified undocumented migrants from non- emergency health care coverage, and barred almost all new immigrants from Medicaid and CHIP during the first five years of their arrival unless state governments decided to maintain these migrants’ entitlement using non-federal funding.201 The dominant discourse leading up to the passage of PRWORA again vilified international migrants as unscrupulous outsiders that took precious public resources away from hardworking Americans.202 But unlike the debate over Proposition 187, the denigration of migrants this time around was no longer limited to those who were undocumented. Lawful migrants, who were lauded as contributors to society and painstakingly distinguished from undocumented migrants by backers of Proposition 187,203 were now tarred with the same brush. Moreover, as the goals of immigration and welfare reform became ever more entangled, the characterization of migrants as freeloading interlopers increasingly coalesced with stereotypes of “welfare queens” and acquired a gendered aspect. Racialized women who supposedly came to the country only to give birth to citizen children as well as elderly migrant women who unnecessarily relied on government handouts emerged as representations of the quintessential abusers of the American social safety net.204 Correspondingly, PRWORA’s immigration clauses, as their introductory remarks stated, were positioned as a sensible remedy for these social ills as they would apparently ensure that “aliens

201 PRWORA, supra note 76, §§ 1611, 1613.

202 Lynn Fujiwara, “Immigrant Rights Are Human Rights: The Reframing of Immigrant Entitlement and Welfare” (2005) 52 Soc Problems 79.

203 Schuck, supra note 198 at 995.

204 Fujiwara, supra note 202 at 80; Illingworth & Parmet, supra note 51 at 81.

75 within the Nation’s borders not depend on public resources to meet their needs … and the availability of public benefits not constitute an incentive for immigration to the United

States.”205 As such, like what occurred in Canada and the U.K., health care assistance for migrants was transformed from an entitlement to a roadblock against immigration control and migrant self-sufficiency, which must be eliminated.

2.5 Conclusion

In this chapter, I explored Canadian policies past and present as a case study to illustrate how international migrants’ health care entitlement has generally been configured in Western liberal democracies. I showed that receiving countries regularly deploy an arsenal of immigration and health benefit eligibility rules to circumscribe international migrants’ health care entitlement. Whereas immigration regulations traditionally aim at blocking the physical access of foreign nationals perceived as “high users” to the public health care programs, welfare controls increasingly look to strip away the benefits of migrants that are considered less desirable in an effort to coerce their self-deportation and to deter similar immigration flows in the future. As a result, international migrants, particularly new arrivals and those who lack the right of permanent or long-term residence, face notable gaps in their health care coverage when compared with that of receiving-country nationals. Such differential health care entitlement tends to be starkest between citizens and international migrants who are not admitted into the country for employment purposes as well as those who are in the country irregularly. Among humanitarian migrants, individuals whose applications for asylum or temporary protection are still pending or have been refused are at the greatest risk of being denied adequate health care protection. Oftentimes, these international migrants are depicted as unscrupulous health tourists that exploit the loopholes in Western countries’ immigration regimes so as to take advantage of the publicly- funded health care that is available. This narrative allows receiving-country governments to justify their denial of health care entitlement to international migrants as a necessary measure to contain public spending and to preserve the integrity of their respective immigration systems.

205 Supra note 76, § 1601.

At the same time, a cursory scan of the migrant health care policies in other Western liberal democracies also uncovered examples that deviate from this trend. The public health care systems in a number of European countries appear to have more forcefully resisted the incursion of the exclusionary logics, and have therefore maintained relatively comparable health care coverage between citizens and international migrants. The same could even be said about Canada’s own migrant health care policies in the first few decades of Medicare. By itself, the presence of these more liberal migrant health care regimes either in another jurisdiction or at another time does not necessarily mean that other policymakers ought to follow suit. It may be the case that equal health care entitlement between citizens and international migrants is beyond what is demanded by the normative principles that Western liberal democracies generally subscribe to. However, what this divergence of policies does show is that, besides the push to limit migrant health care entitlement for the purposes of cost containment and immigration control, there are values and considerations pulling receiving countries’ policymaking in the opposite direction. In the upcoming chapters, I will explore these rivaling rationales and grapple with the question of how they ought to be reconciled. The outcome of this discussion will then inform our answer to the question of whether international migrants should or should not be entitled to health care equal to citizens in Western receiving countries. But before doing so, the chapter that immediately follows seeks to further flesh out Western countries’ contemporary migrant health care policies by locating them in relation to the neoliberal politics that have taken hold since the late 1970s.

Chapter 3 Contextualizing Inequality: Neoliberal Underpinning of Contemporary Migrant Health Care Policies 3.1 Introduction

A number of themes emerged from the policy analysis conducted in the preceding chapter. First, in many Western countries, the extent of health care presently enjoyed by international migrants falls short when compared with that by citizens. This entitlement gap is particularly evident when examining the health care coverage of migrants without the right of permanent residence. Second, restrictions on migrants’ health care entitlement are commonly held out by receiving countries as necessary protection against unscrupulous foreign nationals. Contemporary migrant health care policies, therefore, constitute an integral part of Western countries’ immigration- control strategies. Third, migrant health care policies are far from static. In countries such as Canada, U.K., and the U.S., the deliberate stratification of migrants’ health care coverage based on immigration objectives appears to have crystallized only in the past few decades.

My aim in this chapter is to tease out the political dynamics that have contributed to these policy trends. In doing so, I hope to unpack the prevailing logic behind citizens’ health care entitlement and provide further context for the cost-saving and fraud-deterrence arguments regularly invoked to curtail migrant health coverage. At its core, the project that I embark on in this chapter is interpretive in nature. What I offer here is one reading of the results of my foregoing comparative analysis that I believe explains the patterns of citizen-migrant health care disparities with reasonable cogency. I do not suggest that my interpretation is the only, let alone the best, way of making sense of the pertinent policies; to do that would require additional empirical research into the political landscape of each Western country, which is outside the scope of this dissertation. What I contend, in a nutshell, is that the convergence of immigration control and migrant health care restrictions observed across Western countries today maps well onto how neoliberal ideas have largely come to be implemented in these countries’ policy arenas in recent decades. Contrary to the more collectivist ethos in the post-World War II era that prompted the

77 78

expansion of welfare states and facilitated migrants’ inclusion therein,1 the ascendance of neoliberalism in the late 1970s—with its emphasis on individualism and self-reliance—has often spurred the contraction of social programs and promoted individuals’ market participation. These policy shifts, in effect, have altered the relationship between citizens and social rights. No longer is social entitlement accepted as intrinsic to the status of citizenship, it is increasingly characterized as a privilege to be earned when citizens fulfil certain responsibilities in a form of quid pro quo. With respect to non-citizens, I argue, the same neoliberal principle of self- sufficiency appears to have functioned as a benchmark for their desirability, and this helps explain the valorization of economic migrants by Western receiving countries, as well as the portrayal of other migrants as freeloaders that are undeserving of publicly-funded health and social care.

Specifically, my arguments in this chapter will unfold in the following sequence. I begin, by way of background, with a brief account of neoliberalism’s emergence and global spread since the late 1970s. Given that much ink has been spilled on this subject,2 my aim in this section is simply to provide a historical anchor for the remainder of this chapter. Consequently, my recounting of neoliberalism’s rise to political dominance will admittedly be stylized. Next, in Sections 3.3 and 3.4, I turn my attention to the impact of neoliberalism’s implementation on Western countries’ health care and immigration policies respectively. I show that with respect to health care, neoliberalism’s preference for the free market over state actions has enlarged the space for private sector involvement and promoted international trade of health care goods and services. All the while, neoliberal globalization has fuelled an intensifying anti-immigrant sentiment and caused Western receiving countries to tighten their borders vis-à-vis migrants deemed of less immediate economic utility. Section 3.5 then builds on these observations to illustrate how neoliberalization of health care and immigration intersects to inform and validate contemporary migrant health care policies in Western countries.

1 See generally, Diane Sainsbury, “Immigrants’ Social Rights in Comparative Perspective: Welfare Regimes, Forms of Immigration and Immigration Policy Regimes” (2006) 16 J European Soc Policy 229.

2 See e.g., David Harvey, A Brief History of Neoliberalism (Oxford, U.K.: Oxford University Press, 2005) [Harvey, Brief History]; Rachel Turner, Neo-Liberal Ideology: History, Concepts and Policies (Edinburg, U.K.: Edinburgh University Press, 2008); David Kotz, The Rise and Fall of Neoliberal Capitalism (Cambridge, Mass.: Harvard University Press, 2015).

3.2 Making of a Global Neoliberal Hegemony

3.2.1 Postwar Keynesian Welfare State

From the end of the Second World War to the late 1970s, the Keynesian welfare state emerged as the dominant political-economic paradigm in the West.3 Broadly speaking, welfare state refers to a capitalism-based political system in which citizens are guaranteed at least basic social services that help them mitigate certain life risks and vulnerabilities.4 The particular form of welfare state that flourished in the postwar era combined public provision of social services with Keynesian economics, which stressed the need for government to maintain macroeconomic stability by managing fluctuations of the business cycle and sustaining reasonably full employment. Accordingly, public expenditure on social programs, even when financed by budgetary deficits, was championed as a strategy for stimulating aggregate demand and fuelling economic growth.5 The economic rationale aside, many countries also considered the adoption of Keynesian welfarism as a pragmatic imperative for preventing a repeat of the sociopolitical crisis experienced during the interwar period. It was hoped that government assurance of basic social rights would appease citizens who had become disillusioned with the market economies and dissuade them from turning to more extreme political beliefs such as Fascism or Communism.6

The postwar expansion of the Keynesian welfare state signified the maturation of social citizenship during this time. T.H. Marshall observed that citizens’ rights in a welfare state were no longer limited to those of a civil and political nature, but included a social dimension that ranged from “the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards

3 Peter Flora & Arnold Heidenheimer, eds, The Development of Welfare States in Europe and America (New Brunswick: Transaction, 1981).

4 Magnus Ryner, “European Welfare State Transformation and Migration” in Michael Bommes & Andrew Geddes, eds, Immigration and Welfare: Challenging the Borders of the Welfare State (New York: Routledge, 2000) 51 at 53.

5 See generally, Jill Quadagno, “Theories of the Welfare State” (1987) 13 Annual Rev Sociology 109 at 110-111.

6 Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism, 1st ed. (Toronto: Knopf Canada, 2007) at 62- 63.

prevailing in the society.”7 That is, unlike civil-political citizens of earlier times who were bestowed the freedom to participate in the market economy but were left to attain socioeconomic security on their own, social citizens were said to enjoy “a universal right to real income which

[was] not proportionate to the market value of the claimant.”8 By banding together and agreeing to redistribute resources with one another, social citizens expected that, in their hour of need, society would come to their aid and supply them with the basic necessities of life.9 Viewed in this light, the emergence of the Keynesian welfare state, as Marshall put it, amounted to “an invasion of contract by [citizenship] status, the subordination of market price to social justice,

[and] the replacement of the free bargain by the declaration of rights.”10

It was in this spirit of social citizenship that modern universal health care programs, first took root in the late-nineteenth century Germany, came to be an integral component of the postwar welfare state in most industrialized countries.11 For example, in Canada, universal hospital insurance and medical care programs were introduced in 1957 and 1966 respectively.12 In a stern rebuke of the past where access to health care for most Canadians primarily depended on one’s ability to pay, then federal health minister, A.J. MacEachen, when introducing the universal medical care plan, declared it a “fundamental principle that health is not a privilege tied to the state of one’s bank account, but rather a basic right which should be open to all.”13 This newfound appreciation for health care as constitutive of everyone’s basic rights bespoke a decommodification process under the Keynesian welfare state that saw the free market increasingly replaced by public institutions as the principal site of acquiring social goods, including health care.

7 “Citizenship and Social Class” in T.H. Marshall, ed, Citizenship and Social Class and Other Essays (London: Cambridge University Press, 1950) 1 at 11.

8 Ibid. at 47.

9 Peter Taylor-Gooby, Reframing Social Citizenship (Oxford: Oxford University Press, 2009) at 4-6.

10 Marshall, supra note 7 at 68.

11 See generally, Jesse B Bump, “The Long Road to Universal Health Coverage: Historical Analysis of Early Decisions in Germany, the United Kingdom, and the United States” (2015) 1:1 Health Systems & Reform 28.

12 Hospital Insurance and Diagnostic Services Act, S.C. 1957, c. 28; Medical Care Act, S.C. 1966, c. 64.

13 House of Commons Debates, 27th Parliament, 1st Sess., Vol. VII (12 July 1966) at 7545 [emphasis added].

Notwithstanding its prevalence among Western industrialized nations, the Keynesian welfare state attracted criticisms from both the left and the right of the political spectrum. Critics on the left argued that social welfare programs were by and large ineffective in achieving their redistributive goals as income redistribution tended to take place horizontally within the working class rather than vertically between different socioeconomic strata.14 They also complained about the bureaucratic machinery that was set up to deliver social programs for often being inflexible and repressive.15 Moreover, the failure of the welfare state to challenge and transform the capitalist mode of production was denounced, especially by socialist advocates, as an untenable compromise that was unlikely to ever eliminate the root causes of inequities.16 On the flip side, early neoliberal theorists—exemplified by those who founded the Mont Pelerin Society in 1947—challenged the Keynesian welfare state from the right. They considered the binds of the social welfare apparatus a menace to human dignity and personal autonomy, which they held sacrosanct.17 They argued that despite being touted as a remedy for the ills of capitalist accumulation, the Keynesian welfare state actually exacerbated these problems by not allowing the market to do its job properly. Instead of curtailing the growth of the free market, in their view, government should safeguard private property and nurture market competition, which supposedly would bring about social peace and economic development that could benefit everyone.18

Prior to the late 1960s, the Keynesian welfare state appeared almost invincible to these critiques, partly because its introduction and expansion happened to coincide with a prolonged stretch of rapid economic growth in the West. The situation started to change in the 1970s when many Western industrialized countries entered a period of economic downturns. Precipitated in part by the oil crises that escalated the price of petroleum, countries around the world were confronted

14 Claus Offe, “Some Contradictions of the Modern Welfare State” (1982) 2:5 Critical Soc Policy 7 at 12.

15 Ibid. at 12-13.

16 Ibid. at 13.

17 Harvey, Brief History, supra note 2 at 19-20.

18 Offe, supra note 14 at 8-11.

with the difficult problem of stagflation, where unemployment and inflation both soared.19 The Keynesian welfare orthodoxy struggled to offer satisfactory solutions to the growing economic crisis: whereas Keynesian policies designed to lower unemployment risked fuelling the inflation, those aimed at controlling inflation threatened to worsen the problem of unemployment. Governments were thus pressed to explore alternative political-economic models for a way out of this conundrum. Initially, electorates in much of the Western world turned to the political left in hope of resolving the economic crisis through further state control and market regulation. However, when these measures failed to make noticeable inroads into curbing stagflation, some governments started to experiment with neoliberal policies.20

3.2.2 Neoliberalism’s Rise to Dominance 3.2.2.1 Neoliberalism in a Nutshell

Etymologically, neoliberalism denotes a renewed commitment to the classical liberal vision that seeks to unshackle individuals from the binds of state control.21 Central to this neoliberal worldview is the idea that individuals are armed with “a flexible bundle of skills” that enables them to make decision reflexively by rationally weighing risks and benefits.22 It is suggested that “human well-being can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade,” while “[t]he role of the state is to create and preserve an institutional framework appropriate to such practices.”23 In other words, proponents of neoliberalism favour the marketplace over government institutions as the preferred locus for the exercise of free will. According to Milton Friedman, the free market in its ideal form not only allows individuals qua consumers to make their choices without coercion from others, but also serves as a check on government authority so as to facilitate individuals’ political autonomy.24

19 Harvey, Brief History, supra note 2 at 12-13.

20 Ibid.

21 Sue McGregor, “Neoliberalism and Healthcare” (2001) 25 Intl J Consumer Studies 82 at 83.

22 Ilana Gershon, “Neoliberal Agency” (2011) 52:4 Current Anthropology 537 at 546.

23 Harvery, Brief History, supra note 2 at 2.

24 Capitalism and Freedom (Chicago: University of Chicago Press, 1962) at 15.

In order to safeguard the prosperity of the marketplace, neoliberals believe it necessary to control public spending and avoid government deficit so as to suppress the cost of private investment.25 Unlike the emphasis of Keynesian welfarism on state provision of social goods, neoliberalism considers market economies better placed to help individuals secure socioeconomic needs. Accordingly, citizenship and its relation to social rights in a neoliberal state tend to take on a different hue from that in the Keynesian welfare regime. Compared with social citizens, the ideal citizens from the neoliberal perspective are often much more individualistic and self-sufficient. Margaret Thatcher, a famed supporter of neoliberalism, once declared that “[t]here is no such thing as society … [but a] living tapestry of men and women and people and the beauty of that tapestry and the quality of our lives will depend upon how much each of us is prepared to take responsibility for ourselves and each of us prepared to turn round and help by our own efforts those who are unfortunate.”26 By touting the virtues of personal responsibility and private aid, Thatcher’s claim epitomizes the “active” tenor of neoliberal citizenship. Contrary to their social citizen counterparts, neoliberal citizens’ social entitlement is not a concomitant of their legal status but a privilege reserved for those who have demonstrably discharged certain civic duties and are therefore deemed worthy. To quote Dann Hoxsey, “[e]xistence is no longer enough, [and] it is what the person does with their existence that sets them apart from the masses and elevates them to the heights of deserving citizenship.”27

The neoliberal brand of individualism has often been criticized for holding people answerable to their own well-being with little regard for the systemic forces that may constrain their ability to adequately assume such responsibilities.28 However, neoliberalism’ affirmation of individual freedom and its distrust of the bureaucratic establishment were by no means unique among political philosophies that were jostling for dominance amidst the decline of the Keynesian

25 See generally, Ravi Roy & Arthur Denzau, “The Neoliberal Shift in US Fiscal Policy From the 1980s to the 1990s” in Ravi Roy, Arthur Denzau & Thomas Willett, eds, Neoliberalism, National and Regional Experiments with Global Ideas (New York: Routledge, 2007) at 107-134.

26 Interview of Margaret Thatcher by Douglas Keay (23 September 1987) in “Aids, Education and the Year 2000!” Woman’s Own (31 October 1987), online: Margaret Thatcher Foundation [emphasis added].

27 “Debating the Ghost of Marshall: A Critique of Citizenship” (2011) 15 Citizenship Studies 915 at 928.

28 See e.g., Gershon, supra note 22.

84 welfare state. For instance, some parallels can be drawn between neoliberalism and the American New Left movement in the 1960s, which aimed to achieve a form of participatory democracy that would emancipate individuals from the oppression of highly centralized governments perceived as unresponsive and authoritarian.29 In one sense, this overlap between neoliberalism and the New Left is indicative of a new anti-establishment common sense that was emerging, which would continue to be cultivated into the 1970s by popular media, prominent think tanks, and prestigious academic institutions. At the same time, the ideological split between the Old and the New Left, although not necessarily unamendable, arguably weakened the oppositional forces in the face of neoliberalism’s ascent to dominance.30

3.2.2.2 Constructing a Global Neoliberal Order

Having set the stage, this subsection will trace neoliberalism’s emergence and propagation in the wake of the Keynesian welfare state’s demise. But before doing so, it behooves me to reiterate a caveat that I mentioned in my introductory remarks: the historical account that I am about to offer is simplistic by design. Given my purpose here is to illustrate the global spread of neoliberal values, I find it unnecessary to detail all the related historical events. However, the simplicity of my discussions below should not be taken as suggesting that the uptake of neoliberal ideologies by governments around the world either entailed a straightforward progression or was free from challenges from rival theories. In reality, as pointed out by David Harvey, “[t]he capitalist world stumbled toward neoliberalization as the answer [to the economic crisis of the 1970s] through a series of gyrations and chaotic experiments... .”31 Thus, although I only offer a bird’s-eye view of the relevant history here, I fully acknowledge that the development of neoliberal states around the world has not been a uniform process. Across different countries, the pattern, pace, and degree of neoliberalization often vary due to differences in governmental structures, societal values, and civil society responses; even within a

29 Michael Barone & Lynn Scarlett, “Missing the Boat? Was the ‘60s Disdain for Bigness, Centralization, & Conformity Healthy Until It Went Awry?” (1997) 8:3 American Enterprise 42.

30 Harvey, Brief History, supra note 2 at 41-44, 54-57.

31 Ibid. at 13.

85 country, it is not uncommon for the impact of neoliberalism to differ across sectors and geographical regions.32

With the abovementioned caution in mind, I begin my historical review in the U.S., which found itself plagued by the problem of stagflation in the late 1970s owing largely to a surge in oil prices.33 Amidst this economic trouble, Paul Volcker was appointed by then U.S. President Jimmy Carter in 1979 as the new chairman of the Federal Reserve. As a follower of Milton Friedman’s monetarist theory, Volcker’s appointment was considered by some as an important turning point in the U.S.’s departure from Keynesianism.34 Pursuant to the theory of monetarism, the maintenance of price stability, rather than high employment rate, is the primary objective of macroeconomics and this stability is expected to be attained through adjusting the money supply in the market.35 Volcker thus concentrated his anti-stagflation efforts on combating inflation. He sought to limit the supply of money by sharply rising the interest rate. This caused the real interest rate to jump from being in negative territory during the 1970s to positive, with the nominal interest rate reportedly reaching almost 20% by the middle of 1981. This measure was buttressed by a systemic cut in the federal government spending, particularly under President

Ronald Reagan.36 Similar neoliberal monetary and fiscal policies became adopted around the developed world around the same time, including in the U.K. under Margaret Thatcher37 and in

Canada under both Liberal and Progressive Conservative governments.38 Although these measures had caused the level of unemployment to soar at first—for example, unemployment in

32 David Harvey, “Neoliberalism as Creative Destruction” (2007) 610 Annals American Academy Political & Soc Science 22 at 29; Roger Keil, “‘Common-Sense’ Neoliberalism: Progressive Conservative Urbanism in Toronto, Canada” (2002) 34 Antipode 578 at 582.

33 Harvey, Brief History, supra note 2 at 12-13.

34 See e.g. ibid at 23.

35 Rick Rowden, The Deadly Ideas of Neoliberalism (London: Zed Books, 2009) at 96.

36 Harvey, Brief History, supra note 2 at 23-26.

37 Ibid. at 58-59.

38 Heather Whiteside, “Canada’s Health Care ‘Crisis’: Accumulation by Dispossession and the Neoliberal Fix” (2009) 84 Studies in Political Economy 79 at 82; Keil, supra note 32 at 588.

the U.S. reached a historical high of 10.8% in 1982,39 and the non-seasonally adjusted average

unemployment rates in the U.K. more than doubled between the 1970s and the 1980s 40—the job market ultimately stabilized and the combination of interest rate hike and budgetary control proved successful in quelling inflation.

Given this policy success, by the end of the Reagan-Thatcher era, neoliberal values such as small government, deregulation, and privatization were firmly embedded in many Western societies. As a case in point, in the U.K. the grip of Thatcherism on the political-economic arena was so powerful that the oppositional Labour Party acknowledged it as the “new reality” according to which the party must “modernize” itself. Indeed, the so-called “New Labour” that succeeded Thatcher and Major’s Conservative government was described by some of its own members as essentially adhering to a more humane version of neoliberalism.41 Similarly, variants of neoliberal policies continued to reign in the U.S. even under the Democratic government of Bill Clinton, as evidenced by the passage of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996, which transformed social assistance from an entitlement-based to an obligation-based program.42

In addition to reorienting the domestic political-economic apparatus, the ascent and entrenchment of neoliberalism requires some degrees of international collaboration. That is, the proper functioning of a neoliberal regime entails not only “rolling back” the control of the Keynesian welfare state but also “rolling out” an international governance structure that could maintain the conditions necessary for market economies to flourish.43 For instance, the possibility of free international trade largely depends on countries agreeing to remove trade

39 “Labor Force Statistics from the Current Population Survey” (7 February 2020), online: U.S. Bureau of Labor Statistics .

40 James Denman & Paul McDonald, “Unemployment Statistics From 1881 to the Present Day” (January 1996) Labour Market Trends 5.

41 Clive Peedell, “Global Neoliberalism and the Consequences for Health-Care Policy in the English NHS” in John Lister, ed, Europe’s Health for Sale: The Heavy Cost of Privatisation (London: Libri, 2011) 107 at 109.

42 Harvey, Brief History, supra note 2 at 51.

43 Jamie Peck & Adam Tickell, “Neoliberalizing Space” in Neil Brenner and Nik Theodore, eds, Spaces of Neoliberalism: Urban Restructuring in North America and Western Europe (Oxford: Blackwell, 2002) 33.

87 barriers and to implement similar pro-market policies. The accomplishment of this “rolling out” process demanded global governance organizations such as the World Bank, the International Monetary Fund (“IMF”), and the World Trade Organization (“WTO”) to construct and enforce neoliberal norms at the international stage.

The involvement of the World Bank and the IMF in the global neoliberalization process stems from their role as lenders to countries in economic or financial needs, and by extension their ability to attach conditions to these loans. During the stagflation period, markets in Western industrialized states were flooded with capital. In their search for an outlet for the excess money, Western financial institutions directed their attention to lower- and middle-income countries (“LMICs”), many of which desperately needed cash to either deal with increasing trade deficits or jumpstart their nation-building projects after having recently gained independence.44 Unbeknownst to these LMICs, however, as these loans were often designated in U.S. dollars, the drastic rise of interest rate in the U.S. in the early 1980s would significantly worsen their debt burden. The ratio of developing countries’ debt service payments to their total export incomes escalated from below 9% in 1975 to approximately 12% in the 1980s, pushing many LMICs close to the brink of default.45

In order to meet their debt obligations, LMICs turned to international lending agencies, particularly the World Bank and the IMF, for assistance. While these institutions were willing to provide financial support, to ensure the repayment of the loans, they frequently required as a lending condition that debtor countries undergo “structural adjustment” to stimulate their economic growth.46 The content of such adjustment programs was highly influenced by the political-economic preferences of the U.S. and other industrialized countries that held the majority of the voting powers at these institutions, as well as those of the World Bank and IMF

44 Jeff Rudin & David Sanders, “Debt, Structural Adjustment and Health” in Solomon Benatar & Gillian Brock, eds, Global Health and Global Ethics (Cambridge: Cambridge University Press, 2011) 155 at 156-157; Carles Muntaner et al, “Challenging the Neoliberal Trend: The Venezuelan Health Care Reform Alternative” (2006) 97:6 Can J Public Health I-19 at I-20.

45 Rowden, supra note 35 at 65.

46 Francisco Armada, Carles Muntaner & Vicente Navarro, “Health and Social Security Reforms in Latin America: The Convergence of the World Health Organization, the World Bank, and Transnational Corporations” (2001) 31 Intl J Health Services 729 at 730.

staff, both of which had increasingly tilted toward neoliberalism since the early 1980s.47 The standard policy prescriptions for debtor countries, termed the “Washington Consensus” in reference to the headquarter of the World Bank and the IMF in Washington, D.C., included:

• maintenance of fiscal discipline by reducing the size of budget deficits; • redirection of public expenditure priorities from such areas as public administration, defence, and indiscriminate subsidies to primary health, education, and infrastructure investment; • tax reform by enlarging the tax base and lowering marginal tax rates; • progressive realization of financial liberalization, including that of interest rate; • adoption of a unified exchange rate that would enhance exporters’ competitiveness; • facilitation of free trade; • promotion of foreign direct investment; • privatization of state enterprises; • market deregulation; and,

• increased legal protection of property rights.48

Originally, these structural adjustment policies were formulated specifically for Latin American countries. But in subsequent years, they were routinely urged on loan-seeking LMICs irrespective of their diversity in terms of sociopolitical backgrounds and economic structures.49 Although commentators have disagreed over whether the Washington Consensus was indeed neoliberal per se,50 its promotion of such measures as free trade and privatization as development

47 Ngaire Woods, The Globalizers: The IMF, the World Bank, and Their Borrowers (Ithaca: Cornell University Press, 2006) at 53-56.

48 John Williamson, “Lowest Common Denominator or Neoliberal Manifesto? The Polemics of the Washington Consensus” in Richard Auty & John Toye, eds, Challenging the Orthodoxies (London: MacMillan, 1996) 13 at 14- 15.

49 Joseph Stiglitz, Globalisation and Its Discontents (New York: W.W. Norton & Company, 2002) at 16.

50 See e.g., John Williamson, “A Short History of the Washington Consensus” (2009) 15 L & Bus Rev Americas 7 at 14-15.

89 strategies certainly reflected the growing support for market-oriented, as opposed to state-led, policies.51

The establishment of the WTO in 1995—described by the organization itself as the culmination of years of “negotiations aimed at progressively reducing obstacles to trade”52—arguably has further enrooted neoliberal norms in the global governance framework. The WTO, through the trade agreements that its member states entered into with one another, establishes the ground rules for international commerce. In the event that disputes break out between members over adherence to these rules, the WTO also assumes an adjudicative role, holding the power to subject violators to trade sanctions. 53 Beyond rule setting, the WTO agreements further act as a powerful incentive that draws non-member countries into the international trading system. Once joined, WTO members are guaranteed most-favoured-nation status (i.e. non-discrimination among trading countries) and national treatment (i.e. non-discrimination between imports and local products or services), which could significantly facilitate access to international consumer markets. In exchange, however, member states are required to open up their domestic markets to foreign competitions and liberalize their trade regimes through legislative and policy reform.54 In this way, neoliberal free trade policies are allowed to propagate worldwide.

In sum, as a result of the neoliberalization process since the late 1970s, much of the world today has witnessed a rise of anti-statist individualism and free market principles when compared to the postwar era. At the international stage, this influence of neoliberalism is further exemplified by the institutionalization of market-oriented development strategies and free trade. Viewed through the lens of citizenship as a bundle of rights, this turn toward market economies for solutions to societies’ socioeconomic problems marked the transition from social to active citizenship. Social entitlements that were once regarded as constitutive of citizenship status have increasingly been scaled back such that only those deemed sufficiently responsible are now considered deserving.

51 Ziya Öniş & Fikret Şenses, “Rethinking the Emerging Post-Washington Consensus” (2005) 36:2 Development & Change 263 at 263.

52 World Trade Organization, Annual Report 2017 (Geneva: World Trade Organization, 2017) at 4.

53 See generally, Bernard Hoekman, “The WTO: Functions and Basic Principles” in Bernard Hoekman, Aaditya Mattoo & Philip English, eds, Development, Trade, and the WTO (Washington, D.C.: World Bank, 2002) 41.

54 Ibid.

And even when social services are available, they are now much more likely to be provided to citizens by non-state actors and/or carried out in a market-like fashion. In the section that immediately follows, I aim to flesh out this impact of neoliberalism on social rights more fully by examining policy and discursive changes that have taken place in the last few decades in relation to health care.

3.3 Neoliberalization of Health Care

Relative to other social programs that were associated with the Keynesian welfare state like public housing and social assistance,55 the field of health care appears to have weathered the pressure of neoliberalism’s implementation better. Today, in most Western countries, state intervention in the health care sector has largely persisted and the assurance of universal health care coverage has remained an important policy objective. By way of illustration, between 1970 and 2005, public outlays on health and long-term care across members of the Organisation for Economic Co-operation and Development (“OECD”) consistently outstripped private spending despite neoliberal pressures on governments to curtail social expenditures.56 These observations notwithstanding, health care systems around the world have certainly not been impervious to the influence of neoliberalism. In fact, over the last few decades, the social solidarity required to sustain universal health care has been constantly challenged by pro-market interests, and the operation of many health care regimes has seen the infiltration of neoliberal logics including privatization and trade liberalization.

3.3.1 Private Sector Participation in Health Care

As mentioned, a mainstay of the neoliberal state is the opening up of political-economic space once heavily controlled by government to private market actors. The actual mechanics of this privatization process, as Hans Maarse explains, is best conceptualized as a continuum that ranges from conversion of public assets into private ownership on one end, to adoption of business

55 See e.g., Raquel Rolnik, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Intl J Urban & Regional Research 1058; David Hursh, “Neo-Liberalism, Markets and Accountability: Transforming Education and Undermining Democracy in the United States and England” (2005) 3 Policy Future in Education 3.

56 Joaquim Oliveira Martins & Christine de la Maisonneuve, “The Drivers of Public Expenditure on Health and Long-Term Care: An Integrated Approach” (2006) 43:2 OECD Economic Studies 116 at 117-118.

management practices in public administration on the other end.57 Regardless of its manifestations, privatization generally aims at accomplishing three neoliberal objectives. Foremost, privatization transforms government as the sole wielder of state powers into an emphasis on governance where the performance of state functions engages a broader set of actors, which will in theory enhance individuals’ political autonomy. Second, the private sector is expected to remedy the ills of public service provision, including inefficiency, impersonality and limited consumer choices. Third, privatization is proffered as a strategy for reducing public spending and trimming down government deficits. Insofar as public debts exert upward pressure on interest rates and consequently the cost of private investment, privatization as a cost containment tool is believed to contribute to the prosperity of the free market.

Admittedly, privatization of various forms has existed in the health care sector even prior to the onset of neoliberalism. However, during this pre-neoliberalism era, privately financed health care in Western countries tended to function as a supplement to a universal health care system that was heavily publicly subsidized. As a case in point, when the World Bank published one of its first-ever policy statements on health in 1975, it cautioned against a wholesale importation of free market principles into the health care sector.58 The Bank identified in this report four peculiarities relating to health care that would render it unsuitable for market competitions. First, the level of information possessed by health care providers and that by patients are usually unbalanced, and this information asymmetry frequently impedes patients’ rational decision- making. Second, externalities exist in the health care sector and often mask the true cost or benefit of a health service, thus causing the demand for the service to fall either above or below the level of allocative efficiency. Third, hospital technologies are capital intensive, and this reduces the level of competition that may exist with respect to its provision. Fourth, a primarily profit-driven market economy tends to fall short in responding to concerns relating to health care equity.59

57 “The Privatization of Health Care in Europe: An Eight-Country Analysis” (2006) 31 J Health Politics, Policy & L 981 at 988.

58 Rowden, supra note 35 at 144.

59 Ibid.

The advent of neoliberalism has not, on the whole, caused governments to jettison their cautionary stance toward the complete privatization of health care systems.60 But it has surely given rise to repeated policy attempts at broadening the scope of private sector involvement in health care.61 To give but one example, in Canada, the federal government in 1977 moved away from an earlier commitment that had it shouldering half of the provincial health expenses to a block-funding system that tied the amount of federal transfer to economic growth rather than actual health care costs.62 Over the next two decades, the federal government would repeatedly impose further caps on its health care transfer payments, which contributed to a steady decline in the public sector share of health care expenditure until a funding hike was introduced in the late

1990s.63 As public spending failed to keep pace with health care costs, provinces began to narrow their Medicare coverage. In Ontario, as mentioned in Chapter 2, a three-month waiting period for all new Medicare applicants and stricter residency requirements were put in place during this time, health care entitlement for many international migrants was eliminated, and services such as annual checkups, vasectomy, and in vitro fertilization for most women were defunded.64 These restrictions and cuts effectively meant that a larger number of people would have to resort to private methods to access an expanded list of health care services. To make matters worse, private patients are often charged a significantly higher rate for the same health care procedure than what their publicly-covered counterparts pay.65 Insofar as the treatment prices negotiated between health care providers and public insurers bespeaks what the providers believe to be fair compensation for their services, the excessive charges imposed on private patients arguably exemplify the commodification of health care. In several provinces, such

60 See e.g., Cecilia Benoit et al, “Medical Dominance and Neolibearlisation in Maternal Care Provision: The Evidence from Canada and Australia” (2010) 71 Soc Science & Medicine 475.

61 See e.g., McGregor, supra note 21; Milton Terris, “The Neoliberal Triad of Anti-Health Reforms: Government Budget Cutting, Deregulation, and Privatization” (1999) 20:2 J Public Health Policy 149.

62 Whiteside, supra note 38 at 89.

63 Ibid. at 90-91; Livio Di Matteo, “The Determinants of the Public-Private Mix in Canadian Health Care Expenditure: 1975-1996” (2000) 52:2 Health Policy 87 at 89.

64 “Ontario will Curb OHIP for Visiting Workers, Students”, Toronto Star (2 April 1994) A9; “Annual Checkups Survive OHIP Cuts”, Windsor Star (18 February 1994) D9.

65 See e.g., Daud Grewal, Policy Paper: International Students (Toronto: Ontario Undergraduate Student Alliance, 2010) at 9.

93 privatization has been buttressed by additional market-oriented cost-saving measures, including contracting out of ancillary services (e.g., food preparation and cleaning services at hospitals) and partnership with the private sector for the financing of health care infrastructure.66

A similar rise in the support for private sector involvement in health care could be observed in the international arena. Here again, the official position of the World Bank serves as a useful barometer of the attitudinal change. In contrast to its earlier hesitancy in relying on market dynamics to allocate health resources, the World Bank produced a series of policy papers in the 1980s that criticized health care systems in LMICs while calling for broader adoption of privatization, cost-sharing (e.g., user charges, health insurance, etc.) and decentralization policies to control public health care spending.67 This change in position culminated in the Bank’s 1993

World Development Report, entitled Investing in Health.68 The report identified four problems that were plaguing the health care systems in LMICs, namely misallocation of public resources, allocative inequity between the affluent and the poor, inefficient government spending and exploding costs.69 To remedy these ills, a three-pronged strategy was recommended. First, in line with neoliberalism’s emphasis on self-responsibility, governments were encouraged to nurture an economic environment that would allow households to better their own health. In particular, income assistance for the poor and expansion of schooling were named as policies that could help individuals and their families acquire health information and make healthier choices.70 Second, governments were urged to redirect health care spending to more cost-effective services like public health interventions and essential clinical care, including, at the minimum, tuberculosis control, pregnancy-related care, basic paediatric treatment, family planning services and management of sexually transmitted infections. To ensure adequate financing for this essential package of services, the World Bank suggested the introduction of user fees, as well as

66 Whiteside, supra note 38 at 91-95.

67 See e.g., David de Ferranti, Paying for Health Services in Developing Countries: An Overview (Washington, D.C.: World Bank, 1985); John Akin, Nancy Birdsall & David de Ferranti, Financing Health Services in Developing Countries: An Agenda for Reform (Washington, D.C.: World Bank, 1987) [Agenda for Reform].

68 (New York: Oxford University Press, 1993).

69 Ibid. at 3-4.

70 Ibid. at 7-8.

self-financing (e.g., private insurance) for non-essential health care.71 Third, LMIC governments were tasked with fostering greater diversity and competition in the provision of health services. To the extent that the public sector would remain involved in service delivery, decentralization of government administrative and budgetary control and promotion of competitive procurement practices were held out as strategies for improving efficiency. And when health services were to be provided by private entities, governments were encouraged to remove legal and administrative impediments to market competition, including levelling the playing field between foreign and domestic suppliers.72

In short, relative to two decades ago, the World Bank in its 1993 report was much readier to accept and even promote private sector participation in health care in the name of promoting efficiency, cost-effectiveness and vertical equity.73 And it would continue to press for this stance well into the 2000s. By the time of its 2004 World Development Report, titled Making Services Work for Poor People, private sector involvement in health care had come to be accepted by the World Bank as the norm, and the solution to LMICs’ health care troubles was said to lie in governments finding “a balance in the public-private mix” so as to minimize the failings of market and government alike.74 Contemporaneously, a similar view on how to improve health care appeared to have also taken root in other global governance institutions. Lending agencies such as the Inter-American Development Bank and the IMF became instrumental in instigating a wave of health care reform across Latin America that had the effect of broadening the role of the private sector. By way of example, in 1995, Venezuela entered into a loan agreement with the Inter-American Development Bank in which it agreed to consider “independent, self-managing,

71 Ibid. at 8-11.

72 Ibid. at 11-13.

73 Empirical evidence, however, has remained equivocal regarding privatization’s ability to improve health care efficiency, quality and equity. See e.g., Sanjay Basu et al, “Comparative Performance of Private and Public Healthcare Systems in Low- and Middle-Income Countries: A Systematic Review” (2012) 9:6 PLoS Medicine 19; PJ Devereaux et al, “A Systematic Review and Meta-Analysis of Studies Comparing Mortality Rates of Private For- Profit and Private Not-For-Profit Hospitals” (2002) 166 CMAJ 1399; Mylene Lagarde & Natasha Palmer, “The Impact of User Fees on Access to Health Services in Low- and Middle-Income Countries” (2011) 4 Cochrane Database Systematic Rev CD009094.

74 (Washington, D.C.: World Bank & Oxford University Press, 2004) at 141.

and self-financing services” as possible sources of additional health care funding.75 Similarly, in an effort to secure financial assistance from the IMF, Peru pledged to opening up its health care sector to more private investments in 1998.76 Together, these episodes clearly point to the normalization of private sector’s involvement in health care financing and provision since the late 1970s. Such privatization creep, I argue, represents one of the most recognizable impact of neoliberalism’s deployment in health care.

3.3.2 Health Services Commodification and International Trade

Accompanying health care privatization, particularly private financing, has been a re-imagination of health care as a common good to it being a private commodity whose allocation is subject to market forces. The processes of privatization and commodification are complementary to each other as they both reinforce the neoliberal market orthodoxy with the view to expand the freedom of individuals qua consumers. Whereas privatization expands the space for market transactions, commodification broadens the range of products and services that can be traded in the marketplace. As a result of this neoliberal drive toward commodification—and no doubt aided by advances in medical technologies in recent decades77—objects that were once considered sacred and ill-suited for commercial exchanges, including even human organs, biological materials and reproductive labour, have increasingly come to be seen as sources of profit-making.78 To be sure, as with privatization, the process of neoliberal commodification has

75 “Program to Strengthen and Modernize the Health Sector” (1995) at para. 1.24, online (pdf): Inter-American Development Bank .

76 Armada et al, supra note 46 at 731-732.

77 Naomi Pfeffer, “Eggs-ploiting Women: A Critical Feminist Analysis of the Different Principles in Transplant and Fertility Tourism” (2011) 23 Reproductive BioMedicine Online 634. As the author notes, notable examples of these medical advances include: the approval of immune-suppressive drug, cyclosporine, in 1983 that significantly improved the success rates of organ transplants; the breakthrough in assisted reproductive techniques in the late 1970s that gave birth to the first-ever baby conceived by in vitro fertilization; and, innovations in egg retrieval methods in the late 1980s that made the procedure less risky. Without such medical progress, the rate and the extent of health care commodification that the world currently experiences likely would have been more restrained.

78 John Harrington, “Law, Globalisation and the NHS” (2007) 92 Capital & Class 81 at 85. For example, the World Health Organization estimated that, at a minimum, 5% of all organ transplantation performed worldwide in 2005— totalling over 90,000 procedures—involved organs that were obtained through commercial transactions. See Yosuke Shimazono, “The State of the International Organ Trade: A Provisional Picture Based on Integration of Available Information” (2007) 85 Bull World Health Organization 955. The commodification of human reproduction, including commercial surrogacy and gametes trade, is also on the rise. Although its precise scope is difficult to pin down, commentators have observed a bustling global industry involving a growing number of commercial entities

96 not entailed a complete abandonment of the view that at least some aspects of health care are unsuitable to be traded as any other commercial goods. After all, organ sale is, on paper, outlawed in all countries except Iran.79 Similarly, commercial involvement in assisted human reproduction is commonly regulated, and at times even prohibited, by governments around the world.80 What has occurred under the implementation of neoliberalism, however, is a better organized and more overt attempt by commercially interested parties to challenge these prevailing norms.

Such commodification in turn has paved the way for an impressive expansion of international trade in health care goods and services, including private consumption of foreign health care services by travelling patients, known as medical tourism.81 Although patients all over the world have long sought health care abroad, in recent decades there has been a more concerted effort on the part of destination-country governments and the private sector to promote health services to international consumers and investors in an attempt to generate foreign currency and invigorate domestic economic development.82 For instance, Thailand was expected to welcome 2.5 million medical tourists in 2018.83 This figure represented a significant increase from only a decade ago

such as transnational fertility clinics, service agencies and brokers, and gamete storage facilities. See e.g., Lisa Ikemoto, “Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services” (2009) 27 Law & Ineq 277; Erin Nelson, “Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy” (2013) 41 JL Med & Ethics 240.

79 I. Glenn Cohen, “Medical Tourism: The View from Ten Thousand Feet” (2010) 40:2 Hastings Center Report 11 at 11.

80 Richard F Storrow, “Assisted Reproduction on Treacherous Terrain: The Legal Hazard of Cross-Border Reproductive Travel (2011) 23 Reproductive BioMedicine Online538 at 539.

81 Besides medical tourism, international trade in health care services has taken such forms as foreign direct investment in the health care sector, exchange of health care services between providers and consumers located in different countries (e.g., telemedicine), and export of health care professionals. Like medical tourism, these types of cross-border health care trade have experience significant growth in recent decades. See e.g., P.R. Venkat, Sam Holmes & Alison Tudor, “An Uncommon Deal Battle Ends” The Wall Street Journal (27 July 2010), online: (Khazanah Holdings, which already had investments in hospitals in Malaysia and India, made a US$2.6 billion bid in 2010 to take over Parkway Pantai Limited, which not only was the largest private health care provider in Singapore but also owned and operated a network of 16 medical facilities across Asia); Melisa Martínez Álvarez, Rupa Chanda & Richard Smith, “How is Telemedicine Perceived? A Qualitative Study of Perspectives from the UK and India” (2011) 7 Globalization & Health 17 (the global telemedicine industry was estimated to generate US$5.8 billion in 2007 and projected to reach US$13.9 billion by 2012).

82 I Glenn Cohen, Patients with Passports: Medical Tourism, Law and Ethics (New York: Oxford University Press, 2015) at 16-19 [Cohen, Patient with Passports].

83 “K-Research: Foreigners Key for Hospitals”, Bangkok Post (13 June 2018), online: .

97 when a total of 1.3 million foreign nationals reportedly received health care in the country in

2007, which was itself a jump of 16% from 2001.84 Similar upswing has also been observed in India, which was visited by over 495,000 medical tourists in 2017, more than doubling the approximately 234,000 people that did the same in 2015.85 To be sure, these statistics, as I. Glenn Cohen cautioned, should be “taken with a heavy grain of salt” given that “much of the data is based on self-reporting by destination country governments or hospitals that have reasons to want to inflate their numbers ….”86 But even so, they point to an upward trend in the flows of global health services trade, which arguably aligns with the neoliberal push for free trade.

As explained, many proponents of neoliberalism consider the ability to trade freely in market economies central to the protection of individual autonomy.87 Moreover, by engaging in global free trade, it is believed that countries would benefit from increased business efficiency, productivity, cheaper goods and services, and ultimately greater prosperity.88 In the context of medical tourism, evidence suggests that it remains inconclusive whether these predicted benefits actually come to pass.89 What appears clearer is the contribution of medical tourism to the development of a private health care industry in destination countries.90 In a way, such growth of medical tourism aligns with the World Bank’s advice to countries to impose more cost-sharing measures on patients who are capable of paying more so as to cross-subsidize the resource- strapped public health care system. As such, Laura Hopkins and colleagues suggested that medical tourism “is best understood as manifestation of an increasingly privatized global medical market arising in the wake of globalization and the diffusion of neoliberal economic policies that

84 Churnrurtai Kanchanachitra et al, “Human Resources for Health in Southeast Asia: Shortages, Distributional Challenges, and International Trade in Health Services” (2011) 377 Lancet 769 at 775.

85 “IMTJ Analysis of 2017 India Medical Tourist Data” (20 September 2018), online: International Medical Travel Journal .

86 Cohen, Patient with Passports, supra note 82 at 1.

87 Cynthia Moe-Lobeda & Daniel Spencer, “Free Trade Agreements and the Neoliberal Economic Paradigm: Economic, Ecological, and Moral Consequences” (2009) 10 Political Theology 685 at 688.

88 Harvey, Brief History, supra note 2 at 66.

89 Y.Y. Brandon Chen & Colleen M. Flood, “Medical Tourism’s Impact on Health Care Equity and Access in Low- and Middle-Income Countries: Making the Case for Regulation” (2013) 41 JL Med & Ethics 286.

90 Ibid. at 289-291.

expand space for private health care market growth in much of the world.”91 The march toward commodification and free trade effectively helps desensitize neoliberal citizens to the practice of charging patients for care, especially when it comes to migrant patients whom—as seen in the previous chapter—are increasingly painted with the same brush as medical tourists. But, in order to further explain this conflation between genuine migrants and medical tourists, I must now shift gear and consider the impact of neoliberalism on the immigration and refugee systems in Western countries.

3.4 Neoliberalization of the Immigration System

Contemporary social attitude toward immigration is seemingly paradoxical. On the one hand, certain groups of immigrants are praised for their economic contributions to receiving countries and are intensely courted the world over. On the other hand, popular discourse in receiving societies has regularly denounced international migrants as threats to public security, social programs, and national identity. As a case in point, a study that tracked the portrayal of immigrants in the Canadian press revealed that nearly a quarter of all relevant news articles published in The Globe and Mail between 2002 and 2006 associated immigrants to crimes or terrorism, while another 14% credited immigration for fuelling the country’s economic prosperity.92 In this section, I examine these two views about international migration in turn, focusing particularly on their links to neoliberalism and its implementation. I argue that although neither economic utilitarian approaches to immigration nor anti-immigrant sentiments are foreign to Western receiving societies, they have acquired new dimensions given neoliberalism’s emphasis on self-responsibility, which amplify their impact on immigration and refugee policies.

3.4.1 Economic Utility of Immigration

Contemporary immigration policies of Western countries have been described as “tuned to maximizing the needs of the neoliberal corporate sector, with business forming the major partner

91 Laura Hopkins et al, “Medical Tourism Today: What is the State of Existing Knowledge?” (2010) 31 J Public Health Policy 185 at 193.

92 David Roberts & Minelle Mahtani, “Neoliberalizing Race, Racing Neoliberalism: Placing ‘Race’ in Neoliberal Discourses” (2010) 42 Antipode 248.

in immigration policy-making.”93 Over the last few decades, international borders on the whole have remained relatively porous for migrants who meet the ideals of neoliberal citizens and are perceived as capable of contributing to receiving countries’ free market economies. At first glance, the economic-oriented nature of today’s immigration policies seems nothing new. In Canada, for example, scholars are quick to point out that “one of the main uses of immigration policy in the past has been as a tool of economic policy.”94 But when one digs deeper, one finds that the economic undercurrent of contemporary Western immigration policies differs from its predecessors in at least two ways. First, in many Western countries, while economic interests used to factor in the immigration policymaking on a relatively balanced basis alongside other considerations such as humanitarianism and family reunification, they now have become the dominant concern in immigrant selection. Second, the characteristics of immigrants that are considered economically valuable have changed over time. In the neoliberal era, Western receiving countries have largely oriented their immigration policies to attract two specific groups of economic migrants: highly-skilled workers and wealthy entrepreneurs on one side, and low- and semi-skilled labour on the other side. In this subsection, I aim to elaborate on these two points by again relying on Canada as a case study. Ultimately, I echo the observations made by Daiva Stasiulis and Abigail Bakan, namely that Western receiving countries, with a view to further their economic interests, have generally steered clear of banning immigration indiscriminately and instead focused on supressing “autonomously organized migration that bypasses the highly selective immigration apparatuses and policies of these states.”95 What the implementation of neoliberalism in the immigration context has achieved, in short, is to lend further legitimacy to governments’ preferential treatment toward international migrants who are “chosen” based on their economic merits over those who ostensibly possess less economic utility and merely “impinge” themselves upon the receiving societies.96

93 Daiva Stasiulis & Abigail Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto Press, 2005) at 13.

94 Alan Green & David Green, “The Economic Goals of Canada’s Immigration Policy: Past and Present” (1999) 25 Can Public Policy 425 at 425.

95 Supra note 93 at 28.

96 See generally, Sally Marthaler, “Nicolas Sarkozy and the Politics of French Immigration Policy” (2008) 15 J European Public Policy 382 at 390.

100

3.4.1.1 Prioritization of Economic Immigrants

Ever since the mid-1990s, a majority of immigrants landing in Canada each year has come through the economic stream (see Figure 3.1). These economic immigrants, described by government as “people selected for their skills and ability to contribute to Canada’s economy,” broadly consist of business-class immigrants (e.g., self-employed workers, entrepreneurs and investors), skilled workers, and their dependents.97 With respect to business-class immigrants, the creation and expansion of government programs that specifically cater to them between the late 1970s and mid-1980s has been identified by Alan Green and David Green as a turning point in the underlying philosophy of the Canadian immigration system.98 It was emblematic of an explicit acknowledgement by Canada that immigration could serve not only as a source of labour, but also as a means to acquire capital and to establish links with international trading partners.99 As such, the business immigration programs mark a clear attempt by Canada to attract the type of self-sufficient entrepreneurs that are sought after in the neoliberal economy. Moreover, to the extent that these programs facilitate the immigration of high-net-worth individuals—which has sometimes been criticized for effectively placing citizenship on sale— they further demonstrate the invasion of contemporary immigration policies by the neoliberal orthodoxy of commodification and free market.100

97 Citizenship and Immigration Canada, Facts and Figures 2016: Immigration Overview – Permanent Residents (Ottawa: Public Works and Government Services Canada, 2018) at 3, online: Immigration, Refugees and Citizenship Canada [Facts and Figures 2016].

98 Supra note 94 at 434.

99 Ibid.

100 Ayelet Shachar, “Citizenship for Sale?” in Ayelet Shachar et al, eds, The Oxford Handbook of Citizenship (New York: Oxford University Press, 2017) 789.

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Figure 3.1. Percentage Distribution of New Canadian Permanent Residents by Principal Applicants’ Entry Category by Year, 1986 – 2015101

Family Class Refugee Economic Class % 70

1991 1994 2001 2008 2011 2015 1986 1987 1988 1989 1990 1992 1993 1995 1996 1997 1998 1999 2000 2002 2003 2004 2005 2006 2007 2009 2010 2012 2013 2014

Meanwhile, Canada has also amplified its courtship of highly-skilled workers, particularly those perceived as having a malleable skillset adaptable to the ever-changing demand of the labour market.102 During the country’s first century, Canada’s immigration policies were often explicitly racist.103 In 1967, a points system was introduced that sought to more objectively assess the admissibility of non-sponsored immigrants based on their human capital. While the introduction of the points system clearly had de-racialization as one of its objectives, it also unequivocally tied Canada’s immigration selection to the country’s labour force needs. Initially, the points system placed significant emphasis on identifying immigrants that could help address immediate labour market gaps. Immigration officials closely monitored job vacancies and regularly revised the points that would be allocated to specific occupations.104 However, as neoliberalism took hold, the logic underlying the points system began to shift, and immigrants

101 Data of this Figure are derived from: Facts and Figures 2016, supra note 97.

102 Harald Bauder, “The Economic Case for Immigration: Neoliberal and Regulatory Paradigms in Canada’s Press” (2008) 82 Studies in Political Economy 131.

103 David Matas, “Racism in Canadian Immigration Policy” (1985) 5 Refuge 8.

104 Green & Green, supra note 94 at 431-432.

102 that are “flexible, adaptable and capable of translating their human capital into new industries and occupations” would become prioritized.105 In comparison with that of 1967, the current regime of points allocation for the Federal Skilled Worker Program accentuates indicators of long-term economic adaptability, such as language proficiency (increased from 10 to 28 points), education (rose from 20 to 25 points), and past work experience (a consideration that did not exist in 1967).106 Gone are points for factors that aimed at predicting prospective immigrants’ short-term success in their intended occupations in Canada, including occupational demand and choice of settlement destination.107

The same neoliberal valorization of flexible labour arguably underscores the latest change to

Canada’s method of selecting skilled immigrants.108 In January 2015, the Express Entry system was launched as a “major step forward in the transformation of Canada’s immigration system into one that is fast, flexible and focused on meeting Canada’s economic and labour needs.”109 Under it, prospective immigrants who are deemed eligible for one of the pertinent economic immigration programs—for example, those who score above the prescribed cut-off under the Federal Skilled Worker Program’s points system—are added to a pool of candidates for up to one year at a time. While placed in the pool, immigrant hopefuls are rated according to another points-based system, i.e. the Comprehensive Ranking System (“CRS”), that measures their human capital (e.g., age, education, and language proficiency), the transferability of their skills, and their connection to Canada, including whether they have managed to secure a qualifying job offer. The government then periodically extends invitations to the top-scoring candidates in the

105 James P Walsh, “Quantifying Citizens: Neoliberal Restructuring and Immigrant Selection in Canada and Australia” (2011) 15 Citizenship Studies 861 at 865.

106 Green & Green, supra note 94 at 432-433; “Six Selection Factors – Federal Skilled Workers (Express Entry)” (24 October 2017), online: Government of Canada [Six Selection Factors].

107 Green & Green, supra note 94 at 432-433; Six Selection Factors, supra note 106.

108 Jesse Root et al, “Discounting Immigrant Families: Neoliberalism and the Framing of Canadian Immigration Policy Change” (2014) Ryerson Centre for Immigration & Settlement Working Paper No 2014/7 at 4.

109 Carol Sanders, “Skills Fast-Track Begins Next Year”, Winnipeg Free Press (5 December 2014) B7.

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pool to apply for permanent residence on an expedited basis.110 To improve their CRS score and therefore the likelihood of being invited to apply for permanent residence, candidates are encouraged to market themselves on various Canadian job boards to secure an offer of employment.111

Effectively, in the advent of the Express Entry system, permanent residency applications from prospective skilled immigrants are no longer reviewed in a first-come-first-serve manner. By prioritizing candidates that are younger, better educated, official language-speaking, and equipped with readily transferable skills, the Express Entry regime toes the neoliberal line and favours workers who can quickly adapt to market changes. In the same vein, by assigning additional points to those with a valid job offer, it rewards prospective immigrants for their resourcefulness and self-sufficiency, while expanding the role of employers in the determination of who get to immigrate to Canada.112 Effectively, as James P. Walsh summarizes: “points-based policies provide techniques of responsibilization in which selection is oriented to picking ‘active’, self-reliant and entrepreneurial subjects likely to stimulate economic growth without significant state intervention or expenditure.”113

The steady expansion of Canada’s economic immigration programs in recent decades has come at the expense of other immigration streams, something that the Canadian government had vowed not to let happen as late as in its 1985 immigration report to Parliament.114 However, by the mid-1990s, Canada’s preference for economic immigrants was palpable. In a pair of publications released in 1994, Citizenship and Immigration Canada was unequivocal about its intention to encourage more immigrants who could contribute to the economy and to restrict the

110 Ahmed Hussen, “Ministerial Instructions Respecting the Express Entry System – Current” (20 June 2018), online: Government of Canada .

111 Jamie Chai Yun Liew & Donald Galloway, Immigration Law, 2nd ed (Toronto: Irwin Law, 2015) at 164.

112 Catherine Costigan, Sabine Lehr & Sheena Miao, “Beyond Economics: Broadening Perspectives on Immigration to Canada” (2016) 48 Can Ethnic Studies 19 at 21.

113 Walsh, supra note 105 at 872.

114 Canada, Employment and Immigration Canada, Annual Report to Parliament on Future Immigration Levels (Ottawa: Supply and Services Canada, 1985) cited in Green & Green, supra note 94 at 434.

104 inflow of family-class migrants, who supposedly had become overly dependent on social assistance.115 As shown in Figure 1, since the early 1990s, while the total number of immigrants admitted to Canada each year as permanent residents has remained relatively stable, the percentage of those entering through family sponsorship has trended downward, decreasing from 44% in 1993 to 24% in 2015. Likewise, the percentage of refugees among all permanent residents has dropped from above 20% in the early 1990s to approximately 10% in 2015. These numbers serve as a poignant foil for the upward trajectory of the rank of economic immigrants, and together they lay bare the neoliberal economic calculus that informs Canada’s contemporary immigration policies. Unless international migrants can prove valuable to the market economy— with self-sufficiency being a basic requirement—it is clear that they are not welcome in Canada.

3.4.1.2 Rise of Temporary Residence Programs

In addition to reorienting the permanent residence program to favour economic immigrants, Canada’s immigration system today is characterized by an unmistakable penchant for temporary migration. As I alluded to in Chapter 2 (see Figure 1 in that chapter), in the last two decades, whereas the number of immigrants granted permanent residence each year rose modestly, the amount of temporary permits issued to migrants annually more than tripled.116 Contributing to such an increase is a jump in the number of temporary foreign workers admitted into the country, from approximately 111,600 per year in 1998 to nearly 302,700 two decades later.117 Whereas economic immigrants, as aforementioned, are largely chosen on the basis of their long-term adaptability to Canada’s labour market, temporary foreign workers are admitted, at least in

115 Ninette Kelley & Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy, 2d ed (Toronto: University of Toronto Press, 2010) at 419; Sedef Arat-Koc, “Neo-liberalism, State Restructuring and Immigration: Changes in Canadian Policies in the 1990s” (1999) 34:2 J Can Studies 31 at 43.

116 Calculation performed by author using statistics provided by Citizen and Immigration Canada, Facts and Figures 2014: Immigration Overview—Permanent and Temporary Residents (Ottawa, Public Works and Government Services Canada, 2016), online: Immigration, Refugees and Citizenship Canada [Facts and Figures 2014].

117 “Facts and Figures 2017: Immigration Overview – Temporary Residents,” online: Government of Canada . The number of temporary foreign workers cited here refers to the combined number of Temporary Foreign Worker Program work permits and International Mobility Program work permits issued in the pertinent year.

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theory, to bridge immediate gaps in the country’s workforce.118 Today, temporary foreign workers in Canada are recruited to meet an array of labour needs, ranging from those in professional services to those in so-called “three-D occupations”—namely work that is dirty, dangerous, and demanding—including agricultural workers, in-home caregivers, and construction labourers.119 Notably, in recent years, the number of temporary foreign workers that are categorized as lower skilled has escalated at a rate that outstrips all others. Between 2002 and 2011, while workers classified as either having elemental skills or as labourers increased from being 1% to approximately 5% of all temporary workers admitted into Canada each year, the corresponding figure concerning higher-skilled workers dropped from 56% to below 35%.120

Undoubtedly, a good portion of migrants that enter through temporary residence programs consists of individuals that are truly looking to pursue time-limited projects in Canada. Nevertheless, for many others, their being designated as temporary residents fails to adequately capture their lived realities. Consider temporary foreign workers as an example. Although their entry into Canada is based on authorizations of a limited duration, the renewability of their work permits means that, in many cases, workers’ actual stay in the country may be relatively lengthy.121 Study shows that three-quarters of the Mexican migrant farm labourers that work in Canada seasonally have returned on an annual basis for over four years, and 22% of them over ten years.122 Such extended presence, often accompanied by the development of close ties with

118 Dominique Gross, Temporary Foreign Workers in Canada: Are they Really Filling Labour Shortages? (Toronto: C.D. Howe Institute, 2014).

119 Malcolm Sargeant & Eric Tucker, “Layers of Vulnerability in Occupational Safety and Health for Migrant Workers: Case Studies from Canada and the U.K.” (2009) 7 Policy & Practice in Health & Safety 51.

120 Jason Foster, “Making Temporary Permanent: The Silent Transformation of the Temporary Foreign Worker Program” (2012) 19 Just Labour 22 at 26-29.

121 Delphine Nakache & Paula Kinoshita, “The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail Over Human Rights Concerns?” (2010) 5 IRPP Study 1 at 34. In an attempt to enforce the supposedly short-term nature of temporary foreign workers’ residence in Canada, a policy that took effect on April 1, 2015 barred lower-skilled foreign workers who have been in Canada for over four years from being issued a new work permit until they spend at least four years outside the country. But this policy was abolished by a new federal government in December 2016. See “Business Applaud Changes to Allow Temporary Foreign Workers to Stay as Long as Permits Renewed”, National Post (15 December 2016), online: .

122 Jenna Hennebry, “Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada” (2012) 26 IRPP Study 1 at 13.

106 the local community, challenges the appropriateness of classifying these migrants as temporary residents.

Notwithstanding the mismatch between their entry categories and their realities, lower-skilled migrant workers generally have very few avenues to convert their temporary legal status into a permanent one.123 As a result, in order to continue staying in or returning to Canada legally, these migrants rely heavily on the employers’ goodwill to help them obtain or renew their work permits. This renders them vulnerable to exploitation at work and yet often unwilling or unable to seek recourse in the event of maltreatment.124 The barriers to speaking out are even greater if migrant workers are issued a “closed” work permit that largely prohibits them from switching jobs.125 To that end, Canadian regulations were changed in 2019 to furnish migrant workers who are facing, or at risk of facing, abuse at work with open permits, thus allowing them to leave abusive employers without compromising their legal statuses.126 However, critics note that more needs to be done to convince ill-treated migrant workers to report their experiences to authorities. Among other things, workers’ inability to challenge an immigration officer’s rejection of their allegation of abuse, as well as the fact that open permits issued to abused workers are typically not renewable, continues to jeopardize these migrants’ legal residence in

Canada should they decide to come forward.127 Thus, by virtue of the conditionality associated with their precarious legal statuses, these temporary migrants are transformed into “flexible” workers coveted in the neoliberal market economy, whose near incapacity to demand better wages or working conditions allows employers to take full advantage of them when the demand

123 Nakache & Kinoshita, supra note 121 at 35.

124 See e.g., Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (Toronto: Metcalf Foundation, 2012); Salimah Valiani, “The Shifting Landscape of Contemporary Canadian Immigration Policy: The Rise of Temporary Migration and Employer-Driven Immigration” in Goldring & Landolt, eds, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013) 55.

125 Faraday, supra note 124 at 76-77.

126 “Open Work Permits for Vulnerable Workers” (last modified 6 December 2019), online: Government of Canada .

127 Nicholas Keung, “Ottawa Proposes Open Permits for Migrant Workers Who Are Abused”, Toronto Star (11 January 2019), online: .

107 for labour is high and all the while ensure the cost of production would remain low. At the same time, the lack of a right to remain in Canada on a permanent basis makes certain that these migrant workers would be readily disposable when the labour demand sags. Given this, to borrow the words of Robyn Rodriguez, Canada’s temporary migration regime effectively serves as an “institutional fix” for its neoliberal economic agenda.128

The growing emphasis on temporary migration serves a second neoliberal policy objective. While Canada’s workforce today benefits greatly from holding migrants captive to their precarious legal statuses, to be sure, the possibility of acquiring permanent residence is available to some temporary migrants, particularly those deemed high-skilled. And for these migrants, temporary immigration authorization represents but an initial stage in their years-long path toward permanent settlement in Canada. Between 2005 and 2014, the number of temporary foreign workers who transitioned into permanent residents in Canada more than quintupled, rising from 8,500 to 49,400 annually.129 One contributing factor to this boom was the launch of the Canadian Experience Class in 2008, which allows certain skilled temporary migrant workers and international students who have successfully obtained Canadian work experience to qualify for permanent residence.130 Another driver was the expansion of the Provincial Nominee Program in the last two decades, whereby temporary migrants intending to settle in and deemed capable of contributing to the economy of a province could be nominated by the relevant provincial government for permanent residency.131 In these cases, as Luin Goldring and Patricia Landolt explained, temporary entry statuses advance a two-step immigration process that enables government to begin reaping the benefit of immigration while it continues to scrutinize migrants’

128 Migrant for Export: Philippine State Brokers Labor to the World (Minneapolis: University of Minnesota Press, 2010) at xxii.

129 Facts and Figures 2014, supra note 116.

130 Ana Ferrer, Garnett Picot & William Craig Riddell, “New Directions in Immigration Policy: Canada’s Evolving Approach to the Selection of Economic Immigrants” (2014) 48 Intl Migration Rev 846 at 857.

131 Erika Gates-Gasse, “‘Two Step’ Immigration: Canada’s New Immigration System Raises Troubling Issues”, The Monitor (1 October 2010), online: .

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deservingness for full inclusion.132 In other words, true to the spirit of neoliberal active citizenship, temporary residence programs place migrants’ “suitability for longer-term employment and settlement” to test.133 Ultimately, only those whose economic utility is proven may be bestowed the right of permanent residence.

In sum, under the influence of neoliberalism, Canada’s immigration policy today is closely aligned with the country’s economic objectives. Not only has immigration through the economic stream overtaken family sponsorship and refugee resettlement as the main route of acquiring permanent residence in Canada, but also the immigration system now relies heavily on temporary residence programs to meet the country’s labour market needs. Before wrapping up this section, I hope to briefly note that the policy trends I have identified here are by no means unique to Canada. Stephen Castles, for instance, has found that other Western countries such as the U.S., U.K., Australia, and Germany have stepped up their efforts in recent decades to attract highly-skilled workers by offering them opportunities of permanent residency and family reunification.134 At the same time, he pointed out that there has been a renewed interest across Europe in establishing guest worker programs, which had largely been discontinued in the mid-

1970s.135 In the same vein, commentators note that the French government has devoted increasing efforts to reshape the composition of its immigration flow by placing more emphasis on economic immigrants while discouraging family-class immigrants and (to a lesser extent) asylum seekers, whom the government cannot necessarily “choose.”136 These observations suggest at least some degree of convergence of immigration policies among Western receiving countries in the neoliberal era.

132 “The Conditionality of Legal Status and Rights: Conceptualizing Precarious Non-citizenship in Canada” in Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013) 3.

133 Ibid. at 8.

134 “Guestworkers in Europe: A Resurrection?” (2006) 40 Intl Migration Rev 741.

135 Ibid.

136 See e.g., Christophe Bertossi, France: The State Strives to Shape “Chosen” Immigration (Rome: Centro Studi di Politica Internazionale, 2008), online: CeSPI .

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3.4.2 Neoliberalism and Anti-Immigrant Sentiment

At the same time as some migrants are valorized for their economic utility, however, an anti- immigrant sentiment can be detected in most, if not all, Western receiving countries. To be sure, even prior to the rise of neoliberalism, varying degrees of resistance to immigration could already be found in these societies, especially when it involved migrants who were ethno-racially and/or religiously different from the dominant local inhabitants. But empirical evidence, albeit limited, indicates that over the last few decades such anti-immigrant attitude has heightened in many places.137 It is also often observed that, at least across Western Europe, there has been a surge since the 1980s in popular support for radical right-wing political parties that advocate for overtly xenophobic immigration policies.138 Prototypical of these groups is the Front National in France, which has long campaigned for a complete stop to immigration and for the deportation of immigrants from Africa.139 As further evidence of this anti-immigrant hostility, policy analyses show that border control measures in many Western countries have become more restrictive since the 1980s, particularly after 9/11 where immigration and national security concerns increasingly overlap.140

While the cause of such anti-immigrant sentiment is likely multifarious, some commentators have pointed to the expanded implementation of neoliberalism as one of its driving forces in recent decades. According to some of these scholars, the xenophobia and support for nativism on display in contemporary Western societies may reflect citizens’ anxiety about the rise in immigration in the wake of neoliberal globalization and the attendant concerns about these

137 See e.g., Moshe Semyonov, Rebeca Raijman & Anastasia Gorodzeisky, “The Rise of Anti-foreigner Sentiment in European Societies, 1988-2000” (2006) 71 American Sociological Rev 426; Marcel Coenders & Peer Scheepers, “Support for Ethnic Discrimination in the Netherlands 1979–1993: Effects of Period, Cohort and Individual Characteristics” (1998) 14 European Sociological Rev 405.

138 Hans-George Betz, “The New Politics of Resentment: Radical Right-Wing Populist Parties in Western Europe” (1993) 25 Comparative Politics 413; Cas Mudde, “Three Decades of Populist Radical Right Parties in Western Europe: So What?” (2013) 52 European J Political Research 1.

139 James Hollifield, “Immigration and the Politics of Rights: The French Case in Comparative Perspective” in Michael Bommes & Andrew Gedds, eds, Immigration and Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000) 109 at 118.

140 Marc Helbling & Dorina Kalkum, “Migration Policy Trends in OECD Countries” (2018) 25:12 J European Public Policy 1779; Cecilia Menjívar, “Immigration Law Beyond Borders: Externalizing and Internalizing Border Controls in an Era of Securitization” (2014) 10 Annual Rev L & Soc Science 353.

110 immigrants’ integration. They contend that neoliberalism-inspired policies such as trade liberation and structural adjustment reforms in LMICs have exacerbated global inequality. And “[a]s wealth and income gaps between developed and developing nations grew, and food and physical security in many of the world’s poor nations became ever more tenuous, desire, desperation, or sometimes both led increasing numbers of people in the global South to migrate

… to developed nations of the global North.”141 This South-North migration has been further supported by the business elites in Western receiving countries, who welcome the steady stream of exploitable workers.142 Between 2000 and 2017 alone, a total of 64 million new international migrants arrived in high-income countries, equalling an annual increase of 2.9%.143

To the extent that such influx of migrants, many of whom racialized, challenges the pre-existing sociocultural hegemony in receiving societies, demand for tighter immigration control has sprung in the name of preserving receiving countries’ national identity. As Raymond Michalowski observed in the U.S. context, “[t]he sense that the ‘face of America’ was changing became an important breeding ground for fear, anxiety, hostility toward immigrants and increasing vocal calls to ‘close the border’.”144 Similarly, in France, anti-immigrant rhetoric frequently depicts racialized immigrants as a threat to “Frenchness,” fundamentally incompatible with the country’s republican ideals and therefore a risk to social cohesion.145 Viewed in this light, some commentators argue that the anti-immigrant sentiment in recent decades and the restrictive immigration policies that it results may be considered “acts of contestation to neoliberalizing policies.”146

141 Raymond Michalowski, “Ethnic Cleansing American Style: SB 1070, Nativism and the Contradiction of Neo- liberal Globalization” (2013) 36 J Crime & Justice 171 at 173.

142 Ibid. See also Monica Varsanyi, “Neoliberalism and Nativism: Local Anti-Immigrant Policy Activism and an Emerging Politics of Scale” (2010) 35 Intl J Urban & Regional Research 295 at 300-301.

143 UN Department of Economic and Social Affairs, Population Division, International Migration Report 2017: Highlights (New York: United Nations, 2017) at 4.

144 Supra note 141 at 177.

145 See e.g., Adam Nossiter, “Marine Le Pen Leads Far-Right Fight to Make France ‘More French’”, The New York Times (20 April 2017), online: ; Hollifield, supra note 135.

146 Varsanyi, supra note 142 at 296.

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However, the anti-immigrant pushback against neoliberalism is not solely triggered by ethnocultural clashes between local inhabitants and migrants. According to some commentators, the link between xenophobia and neoliberalism also lies in the latter’s promotion of labour force flexibilization. As neoliberalism is implemented, with its distrust of union bureaucracy and support for capitalist entrepreneurship, a primary goal of labour policy has been to achieve a more flexible and efficient labour market by incorporating alternative work arrangements such as part-time, temporary, or subcontracted employment.147 While the push for more flexibility has in some cases facilitated greater incorporation of traditionally marginalized labourers (e.g., women, persons with disability, etc.) in the workforce, it has in other situations contributed to deteriorated job security, remuneration, and workplace condition. According to a 2004 report from the OECD, there has been a downward convergence with respect to the robustness of employment protection schemes across industrialized nations since the late 1980s.148 When faced with such a precarious employment condition, which is commonly accompanied by a shrinking social safety net resulting from government spending cuts, some commentators see it as unsurprising that neoliberal citizens adopt a more exclusionary stance toward immigrants, who they consider as competitors and a further threat to job stability.149

Still others have associated neoliberalism with the present iteration of nativism and xenophobia in Western societies in a different manner. The anti-immigrant sentiment, according to this account, is not so much an act of defiance against neoliberal globalization as a foreseeable by- product of how individual identity is constructed in a neoliberal state. “Neoliberal identity,” posits Mary Wrenn, “is isolating, disconnected from any larger community, and as such leaves the individual alienated.”150 In part, the isolation experienced by neoliberal subjects stems from neoliberalism’s valorization of self-responsibility and individualism. Insofar as “[the] neoliberal man is accountable only to himself for no matter what he does, in serving his best interest he serves the common good,” a person’s identity is shared with “no greater group than that of other

147 Rodriguez, supra note 128 at 27.

148 OECD, OECD Employment Outlook 2004, (Paris: OECD, 2004) at c. 2.

149 Rodriguez, supra note 128 at xxii.

150 “Identity, Identity Politics, and Neoliberalism” (2014) 4 Panoeconomicus 503 at 507.

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individuals working within their own isolation.”151 After all, recalling Thatcher’s assertion, there is no such thing as society for neoliberal subjects that may help anchoring their sense of belonging. At the same time, under neoliberalism, “[e]conomic activities are exalted and prioritized above socially integrative activities.”152 The rollback of social welfare programs in favour of free market, in particular, weakens a key traditional source and symbol of national unity, and arguably further contributes to the fragmentation of interpersonal bonds.

Paradoxically, however, David Harvey submits that “the neoliberal state needs nationalism of a certain sort to survive.”153 As he explains, “[f]orced to operate as a competitive agent in the world market and seeking to establish the best possible business climate, [the neoliberal state] mobilizes nationalism in its effort to succeed.”154 In other words, in the pursuit of a competitive edge, neoliberalism depends on nationalism to provide an exit from international policy harmonization that may impede free trade and capital mobility.155 This seeming contradiction between neoliberalism’s individualist and nationalist underpinnings, according to some commentators, is what drives neoliberal citizens to nativism and xenophobia as an avenue of solidaristic assertion. As Jolle Demmers and Sameer Mehendale argue in the Dutch context, “[w]here the neoliberal project has ... abolished the collective standards and solidarities of the post-WWII era, the faces of immigrants have served as ideal, identifiable flashpoints for new repertoires of belonging and othering.”156 In essence, in the face of neoliberal individuation that challenges the collective identification of “who we are,” resistance to immigration offers a convenient option that allows neoliberal subjects to foster a sense of togetherness by declaring “who we are not.”

151 Ibid. at 506.

152 Ibid.

153 Harvey, Brief History, supra note 2 at 85.

154 Ibid.

155 Adam Harmes, “The Rise of Neoliberal Nationalism” (2012) 19 Rev Intl Political Economy 59.

156 Jolle Demmers & Sameer Mehendale, “Neoliberal Xenophobia: The Dutch Case” (2010) 35 Alternatives 53 at 68.

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3.5 Neoliberalization at the Intersection of Health Care and International Migration

So far in this chapter, I have identified the effects of neoliberalism’s implementation on Western countries’ health care and immigration systems respectively. These changes have included, among other things, pressure on governments to cut health care spending and the corresponding expansion of privatized health care, commodification and international trade of health care, and growing emphasis on immigrant selection in accordance with migrants’ perceived economic utility accompanied by persistent anti-immigrant sentiment. In this section, I bring these analyses to bear to illustrate how the general pattern of Western contemporary migrant health care policies combines features of neoliberalization in both health and immigration fields.

As my review in Chapter 2 shows, over the last several decades, a growing gulf has emerged in Western receiving countries between the health care entitlement of citizens and that of international migrants, owing partially to the rollback of some migrants’ health care coverage. Oftentimes, such curtailment of migrants’ health care is presented by government as part of a necessary strategy to rein in out-of-control public spending. From this perspective, migrant health care cuts arguably can be considered as part and parcel of what Ed Mynott referred to as

“an unprecedented neo-liberal onslaught on the welfare state.”157 For instance, Ontario’s exclusion of temporary foreign residents from Medicare in the mid-1990s, as I explained earlier, constituted only one component of a larger provincial plan “to protect [health] services by spending carefully and wisely.”158 The Ontario Court of Appeal in Irshad (Litigation guardian of) v Ontario (Ministry of Health) recounted the province’s health care landscape in the 1990s as follows:

The annual increases in health care costs, coupled with large reductions in the federal transfer payments relied on to fund health care, made the fiscal crisis faced by the province particularly acute within the health care field. The Ministry had to make

157 Ed Mynott, "Nationalism, Racism and Immigration Control: From Anti-Racism to Anti-Capitalism" in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (London: Routledge, 2002) 11 at 22.

158 Ontario, Legislative Assembly, Official Report of Debates (Hansard), (31 March 1994) at 1349.

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deep cuts in its budget. The measures it took to achieve these reductions affected every part of the health care system, and virtually every resident of Ontario. Physicians’ fees were reduced, hospital beds were eliminated, and it was announced

that services that had previously been covered … would no longer be covered.159

It was against this backdrop that then health minister of Ontario, Ruth Grier, declared it time for temporary foreign residents to “look after [health care] themselves.”160 And by shifting the responsibility of covering migrants’ health care to the private sector, Ontario taxpayers apparently stood to save $48 million each year.161 More recently, Manitoba’s decision in 2018 to strip foreign students of their Medicare coverage has invoked similar lines of justification. Promised to reduce health care spending by $3.1 million yearly, Manitoba’s cuts came amidst a series of health care and post-secondary education reform that was sold by the province as needed steps to pare down its deficit.162 Still another example of budgetary concerns being explicitly used to justify migrant health care retrenchment is the U.K.’s aforementioned policy change in recent years to more closely scrutinize patients’ health care eligibility and to charge certain migrant patients 150% of the regular treatment costs. Such efforts have been boasted by the British government as having the potential to generate an annual revenue of ₤500 million, and therefore a strategy to make the National Health Service (“NHS”) “better resourced and more sustainable.”163 In all these cases, neoliberal narratives of self-responsibility, small government and fiscal conservatism were used to normalize migrant health care cuts as a valid cost-sharing measure. Thus, at least on one level, de-insurance of migrants from public health care programs in contemporary Western countries underscores neoliberalism’s general push for health care privatization.

159 (2001), 55 OR (3d) 43 at para 27 [Irshad].

160 “Ontario will Curb OHIP for Visiting Workers, Students” Toronto Star (2 April 1994) A9.

161 Ibid.

162 Bryce Hoye, “Manitoba Hopes to Save $3M by Pulling Universal Health Care for International Students” CBC News (14 March 2018), online: ; Dan Lett, “Tories Fixated on Cuts, Not Better Health Care” Winnipeg Free Press (22 July 2017) A15.

163 Haroon Siddique, “NHS to Charge Non-EU Patients 150% of the Cost of Treatment” The Guardian (15 July 2014) 11.

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However, migrant health care retrenchment is about much more than the neoliberal rollback of social programs. While the neoliberalization of health care opens the door to the attenuation of public spending, the oft-observed disparities between citizens’ health care entitlement and that of migrants indicate that the brunt of health care privatization has been borne by international migrants in Western receiving societies. Such uneven allocation of health care resources along citizenship statuses bespeaks the ever-greater coalescence of health care and immigration policies, which I argue is at least in part spurred by the rising nativism and xenophobia in recent decades. That is, to the extent that neoliberal forces have been able to chip away the universal nature of health care, possibilities emerge in the immigration and refugee system to utilize health care policies as an instrument for appeasing anti-immigrant sentiment. In the U.S. context, Kevin R. Johnson has skillfully teased out such a nativist undertone in his case study of California’s

Proposition 187 campaign.164 He observes that the priority-to-citizens logic was palpable throughout the Proposition 187 movement, which sought to eliminate undocumented migrants’ public health care benefits, among other things, so as to reduce the flow of unauthorized immigration and the associated government spending. A campaign insider lamented at the time:

I don’t mean to be inhumane, but this [undocumented] woman [seeking medical care] is a perfect example of why we need Prop. 187. … She has already had two children here and now she’s on her third, and she doesn’t even belong here. All I can say is, these people are going to have to go back home. We’re paying for her care

while Americans are homeless and starving in the streets.165

Beneath this seemingly indiscriminate condemnation of undocumented migrants, Johnson reveals that the intended target of the Proposition was primarily migrants from Mexico. He notes that in the minds of some of the Proposition’s supporters, Mexican migrants embodied a “Third World culture” that was closely linked to criminality and increasingly threatening what they saw as the American way of life.166 As one of the campaign’s spokespersons exclaimed in a letter to

164 “An Essay on Immigration Politics, Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance of Race” (1995) 70 Wash L Rev 629.

165 Ibid. at 657.

166 Ibid.

116 editor in the New York Times, the passage of Proposition 187 was considered necessary to prevent the occurrence of “a Mexico-controlled California” where Spanish could become the dominant language and “10 million more English-speaking Californians could flee.”167 Even though the ballot measure was ultimately ruled unconstitutional by court, its passage in the first instance was indicative of the ferocity of the anti-immigrant attitude in the American society.

Anti-immigrant sentiment also undergirds restrictive migrant health care policies elsewhere. Returning to the U.K.’s “overseas visitors” charging regulations, as I noted in Chapter 2, the introduction and enforcement of these NHS charges has been deeply intertwined with government efforts to curb immigration, particularly that of racialized persons.168 The rationale behind the exclusion of racialized migrants—routinely depicted as alien, diseased, and burdensome in popular discourse169—from publicly-funded health care is frequently held out by government as plain: these individuals should not have been in the country in the first place. As one members of the UK Parliament remarked: “Our duties to our citizens include the duty to protect our welfare and benefit budgets … at a time of economic stringency. … Those who should not be here but who have got round the system by false applications are of no benefit to our own people.”170 Thus, restrictions on migrants’ health care entitlement is as much about freeing society from unwelcomed migrants as it is about government spending cuts. Specifically, according to the British government, the NHS charging regulations and similar restrictions on migrants’ health care entitlement are intended to accomplish no fewer than two goals. First, they operate as a form of deterrence. When Michael Howard, then Home Secretary, introduced a set of legislative changes in 1995 to tighten asylum seekers’ socioeconomic rights, he rationalized the reform by suggesting that the U.K. had been “far too attractive a destination for bogus asylum seekers and other illegal immigrants” because “it [was] far easier to obtain access to jobs

167 Ibid. at 653-654.

168 Louis Kushnick, “Racism, the National Health Service, and the Health of Black People” (1988) 18 Intl J Health Services 457.

169 Debra Hayes, “From Aliens to Asylum Seekers: A History of Immigration Controls and Welfare in Britain” in Steve Cohen, Beth Humphries & Ed Mynott, supra note 153, 30.

170 UK, HC, Parliamentary History of England, vol 213, col 61 (2 November 1992) (Edward Garnier).

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and benefits [in the U.K.] than almost anywhere else.”171 The assumption here was that social benefits such as health care were acting as a magnet for unwanted immigrants. And by the same token, it is believed that curtailment of migrant health care would disincentivize such immigration flows. Moreover, according to the U.K. Home Office, the NHS charging regulations serve an added function of border enforcement. It expounds:

There should be systematic and predictable consequences in response to determined non-compliance [with immigration rules]. … The impact and immediacy of those consequences will depend on the seriousness of the breach of the rules and the potential harm. … For those not prioritised for removal, they should be denied the benefits and privileges of life in the UK and experience an increasingly

uncomfortable environment so that they elect to leave.172

As such, deprivation of migrants’ health care coverage not only reflects society’s objection against the presence of undesired migrants but also aims to unsettle, and ultimately effect, the departure of these individuals.173 On both fronts, migrant health care restrictions embody an inward extension of immigration control.

As I have shown, the modus operandi of immigration control in Western neoliberal states does not entail blanket rejection of migrants. Rather, caught in the middle of anti-immigrant populism and the market demand for capital and labour, contemporary immigration policies crudely divide migrants into two categories: those directly taking part in the capitalist mode of production, and those who do not. And the closure of borders in the neoliberal era has largely targeted the latter. This utilitarian calculus coupled with the internalization of border controls, I think, helps explain the manner in which health care entitlement has been stratified across migrant groups in Western

171 UK, HC, Parliamentary History of England, vol 267, col 338 (20 November 1995).

172 U.K., Home Office, Enforcing the Rules: A Strategy to Ensure and Enforce Compliance with Our Immigration Laws (London: Central Office of Information, 2007) at 17.

173 The Supreme Court of United States has similarly endorsed the use of social benefit cuts as a form of immigration control. For example, in Plyler v Doe, 457 US 202, a majority of U.S. Supreme Court justices held (at 220) that “[p]ersuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct,” and that “those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences ….”

118 receiving societies today. To a large degree, the breadth of health care coverage bestowed upon migrants may be understood as being dictated by their perceived deservingness. Whereas rights are extended to economic immigrants whom government covets, entitlement is regularly rolled back with respect to family-class immigrants, refugees, asylum seekers and the like, who government fears would be a burden. In fact, migrants who are considered less economically valuable or financially independent are equated with health tourists who ostensibly have no good reason to be in the receiving country other than to take advantage of its health care system. By doing so, migrant health care policies are expected to influence the composition of immigration so as to maximize related economic benefits. But more importantly, they also reinforce the notion of ideal neoliberal citizens who earn their rights by proving their capacity for self- reliance.

The extent to which Canadian provinces include various foreign nationals—i.e. individuals without the right of permanent residence in Canada174—in their respective Medicare programs (see Table 3.1) arguably demonstrates this logic of perceived economic worth. As I detailed in the previous chapter, among foreign nationals, temporary foreign workers are the only ones whose immigration status does not bar them outright from Medicare in at least one province. This is so even as various provincial health care reforms in the last few decades have set sight on curtailing temporary foreign residents’ coverage. For example, when Ontario introduced its austerity measures in 1994, despite its insistence that Medicare coverage would from then on be limited to permanent residents,175 many temporary foreign workers—including seasonal agricultural workers that are only allowed to stay in Canada for up to eight months at a time— actually were allowed to maintain their entitlement.176 This special status enjoyed by migrant workers among temporary foreign residents, I suggest, reflects the valorization of their labour force participation in a neoliberal society. Insofar as their skills and/or labour contributes to the competitiveness of corporate Canada internationally, the preservation of these migrants’ general health is considered in tune with Canada’s strategic interests.

174 Immigration and Refugee Protection Act, SC 2001, c 27, s 2(1).

175 Irshad, supra note 159 at para 40.

176 RRO 1994, Reg 490, s 1.1(1).

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Table 3.1. Summary of Foreign Nationals’ Medicare Coverage in Canada Extent of Coverage Under Medicare Migrant Groups

- temporary foreign workers with work permits that Medicare coverage in all are valid for some prescribed period of time, and provinces/territories their dependents

Medicare coverage in some - international students and their dependents provinces/territories - holders of temporary resident permits

- refugee claimants - undocumented migrants No coverage under Medicare - applicants for permanent residence on humanitarian and compassionate grounds - tourists, transients or visitors

The same economic reasoning also helps shed light on why international students, whose contribution to the labour market is arguably less immediate than those of foreign workers, are presently excluded from Medicare either completely or partially in half of the Canadian provinces and territories although their physical presence in the country may not necessarily be of shorter duration.177 Even when provinces do decide to cover international students in their Medicare programs, economic considerations have often inspired their decisions. For instance, when Newfoundland and Labrador began offering Medicare coverage to international students in 2007, it expressly justified the policy change as a strategy to attract global talent. The province’s Minister of Human Resources, Labour and Employment at the time remarked: “International students represent a large pool of highly-skilled, talented and creative potential immigrants to our province. The extension of [Medicare] coverage to international students supports two key goals under the immigration strategy, including, increasing the enrolment of international students to our post-secondary institutions and the retention of these students upon graduation.”178 The government of Manitoba provided the same rationale when it briefly extended Medicare to foreign students between 2012 and 2018.179 These government statements make it clear that in a neoliberal era, what counts when determining whether to bestow health care entitlement on migrants is the perceived economic worth of these individuals.

177 See Chapter 2, Table 2.2.

178 Government of Newfoundland and Labrador, News Release, “International Students to be Covered Under Province’s Medical Care Plan” (5 June 2007).

179 Paul Turenne, “Foreign students in Manitoba to get free health care” Winnipeg Sun (25 October 2011), online: .

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Further evidencing the incursion of economically motivated immigration control into health care, in the last few decades Medicare benefits for migrants that are traditionally stereotyped as less capable of self-sufficiency have been significantly pared down. Most notably, as mentioned, asylum seekers across Canada—routinely depicted as “freeloaders”180—lost their Medicare entitlement by the mid-1990s, and the Interim Federal Health Program that they now rely on for publicly-funded coverage, in many ways, offers health care access that is less secure.181 In recent years, elderly migrants, who are painted by the prevailing political narratives as “less employable” and imposing hefty financial burden on Canada’s health care resources,182 have faced similar pressure from government to exit Medicare. Due to changes in federal policy concerning family reunification, since late 2011, elderly relatives of newcomers that used to be able to become permanent residents in Canada by way of sponsorship are increasingly cajoled into applying for the Parents and Grandparents Super Visa instead, which entails disqualification from Medicare as a result.183

In sum, in the age of neoliberal active citizenship, international migrants’ Medicare coverage in Canada is marked by increasing fragmentation and selectivity. Among migrants without the right of permanent residence, a hierarchy of Medicare entitlement has been instituted along a continuum of their perceived economic utility, particularly in terms of labour market contributions, with foreign workers atop the pecking order, followed by international students, and asylum seekers and elderly migrants relegated to the very bottom. The possibility of such stratification has built on neoliberalism’s transformation of contemporary health care as well as immigration policies. Whereas neoliberalization of health care normalizes the retreat of the public sector from health care financing, nativism and xenophobia associated with neoliberal globalization condones health care spending cuts to track the divide between citizens and non- citizens. At the same time, neoliberalism’s pursuit of global capital and flexible labour prompts immigration control, including the regulation of health care eligibility, to fixate on migrants’

180 Lisa Priest, “Who Pays Refugee Health Costs?” Toronto Star (15 July 1993) A23.

181 See Chapter 2, nn 176-179 and accompanying text.

182 See e.g., Meagan Fitzpatrick, “Don’t Bring Parents Here for Welfare, Kenney Says” CBC News (10 May 2013), online: ; Tobi Cohen, “Parent, Grandparent Immigration Program Reopens” [Regina] Leader Post (3 January 2014) B8.

183 See Chapter 2, nn 40-41 and accompanying text.

121 economic utility, while the growing acceptance of health care as a tradable commodity provides society with the necessary vernacular to label and legitimize undesired migrants as mere health tourists who ought to be paying their care out of pocket. Through these interwoven neoliberalizing processes, the principle of universality comes to be replaced by that of individual responsibilization, and as Rupaleem Bhuyan and Tracy Smith-Carrier observed, “welfare provisions have increasingly been demarcated within narrow ‘eligibility’ requirements toward socially and spatially targeted policies adopted to identify a ‘problem group of non-normative citizens’.”184 To the extent that social rights are to be “earned” by neoliberal citizens “on the basis of who is worthy [and] who can contribute and be productive,”185 clearly nothing less is expected of migrants.

3.6 Conclusion

In this chapter, I offer one interpretation for the contemporary migrant health care policies observed in many Western receiving countries. I suggest that it is possible to make sense of the unequal health care entitlement often found between citizens of host countries and migrants, as well as that between different migrant groups, through the prism of neoliberalization. Specifically, as migrants’ procurement of health care coverage today demands their ready surrender of monetary resources, skills, and/or raw labour so as to help receiving states maintain an edge in the competitive global market, relevant policies arguably toe the neoliberal line of free market engagement and government spending cuts. On the flip side, society’s efforts to paint undesired migrants as fraudsters and their exclusion from health care as cost savings can be understood in light of neoliberalists’ preoccupation with individualistic self-reliance.

By situating the general patterns of Western migrant health care entitlement within the construction of the neoliberal hegemony, I hope to underscore the point that the policy status quo is merely a product of a particular sociopolitical context and there is nothing inherently inevitable about it. That is, the prioritization of cost containment and immigration control over such concerns as individual rights and wellbeing constitutes but one possibility of how these

184 “Constructions of Migrant Rights in Canada: Is Subnational Citizenship Possible?” (2012) 16 Citizenship Studies 203 at 206.

185 Yasemin Nuhoglu Soysal, “Citizenship, Immigration, and the European Social Project: Rights and Obligations of Individuality” (2012) 63 British J Sociology 1 at 11.

122 various considerations could be balanced in the migrant health care context. Under another set of conditions, such balancing may reach a different outcome. Indeed, even in the face of the dominant tide of neoliberalism, advocacy for alternative ideologies has persisted and sometimes even succeeded in shaping Western receiving countries’ migrant health care policies. For instance, as I noted earlier, heightened immigration control in the last few decades represents at least in part a populist rebuke to neoliberal globalization.

However, the recent influx of migrants has equally inspired resistance to neoliberal public policies in the opposite direction. As Patricia Illingworth and Wendy Parmet observed, “[the] rapid rise in migration … also prompted expressions of generosity and solidarity, as doctors and nurses working for NGOs cared for the refugees as they arrived in Europe, and community across the West opened their doors and hearts to new neighbors.”186 Such expression of inclusion arguably speaks to the tenacity of universalistic aspirations in Western receiving countries. And if carefully harnessed, it may contribute to a policy environment more conducive to universal provision of social benefits, thus more robust migrant health care protection, similar to what was seen in the aftermath of Canada’s retrenchment of its refugee health care program in 2012. As mentioned in the preceding chapter, in a show of solidarity between receiving country citizens and migrants, Canada’s refugee health care cuts were met by spirited public opposition across the country, including from nearly two dozen national health care professional bodies.187 Widespread political protests coupled with a legal challenge that brought together migrants, physicians, lawyers, and child advocates proved successful in mobilizing public opinion against the cutbacks, and ultimately saw refugees’ health care benefits reinstated in 2016.188 Outside Canada, pushback against migrant health care curtailment is also found in Spain where the elimination of undocumented migrants’ public health care coverage in 2012 was heavily

186 The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity (New York: New York University Press, 2017) at 1.

187 Rebecca Warmington & Dolly Lin, “Healthcare Is Political: Case Example of Physician Advocacy in Response to the Cuts to Refugees’ and Claimants’ Healthcare Coverage under the Interim Federal Health Program” (2014) 4 University Ottawa J Medicine 45.

188 Christopher Holcroft, “Restored Care for Refugees Affirms Canadian Values” [Halifax] Chronicle-Herald (2 March 2016) A10.

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criticized by physicians, migrant advocates, and opposition parties.189 Under pressure, the former government reinstituted undocumented migrants’ entitlement to primary care in 2015, and the full restoration of these migrants’ health care coverage was announced by the new socialist regime weeks after its coming to power in 2018.190

These pro-migrant developments highlight the fact that although the implementation of neoliberalism has had notable impact on contemporary migrant health care policies, its influence is constantly contested by rivaling policy stances, including those more universalistic in their outlook. This serves as a reminder that while the deployment of various neoliberal doctrines on the ground offers a good explanation for the general trends of migrant health care policies across Western receiving countries, the making of such policies in many cases is actually much more complicated. But more importantly, it confirms the potentiality of citizens acting in solidarity with migrants for the benefit of all.

Resting on these observations, in the upcoming chapters of this dissertation, I aim to accomplish two objectives. First, I hope to problematize the cost-saving and immigration-fraud-deterrence rationales that permeate migrant health care policies at present, as well as the notion of (un)deservingness they signify. Second, I endeavour to flesh out some of the alternate normative considerations that have been downplayed in the era of neoliberalism, including societal membership and solidarity, which I argue should play a more central role in our delineation of migrants’ health care entitlement.

189 “Spain to Reinstate Primary Healthcare for Illegal Immigrants” Reuters (31 March 2015), online: .

190 Sonya Dowsett, “Spain Brings Back Free Healthcare for Illegal Immigrants” Business Insider (15 June 2018), online: .

Chapter 4 Dissecting the Opposition: Problems with Cost-Saving and Fraud-Deterrence Claims 4.1 Introduction

Having described the unequal health care entitlement between citizens and migrants in Western receiving countries and positioned such inequality within the neoliberal landscape of government spending cuts and tighter immigration control, the following three chapters undertake a normative assessment of the citizen-migrant health care inequality. Specifically, I ask: is migrants’ lesser health care coverage in Western countries justifiable? My answer to this question will primarily turn on the concepts of social solidarity and societal membership. Ultimately, I conclude that unequal health care coverage between citizens and migrants in Western countries is indefensible with respect to migrants who ordinarily reside therein, as well as migrants whose establishment of ordinary residence in the near future can be confidently foretold. Concerning other migrants, I argue that it is morally acceptable for their health care entitlement to be circumscribed. However, no migrants in Western receiving countries should be denied primary care or treatment that cannot be deferred.

My normative analysis will unfurl in three steps. First, in the present chapter, I tackle the frequent claims that limiting migrants’ health care entitlement would save government’s health care outlays and help deter “health tourism.” I contend that, more than their empirical rigor, the entrenchment of these arguments in the migrant health care debate is symptomatic of an us- versus-them mentality that paints migrants—especially those who are racialized and classified into non-economic immigration categories—as undeserving others. Such “othering” begs the question of who properly constitutes “us.” In Chapter 5, I pick up this inquiry. I draw on the work of liberal egalitarian and communitarian theorists to show that affording equal health care entitlement to citizens and migrants who are ordinarily resident in Western receiving societies, or those whose ordinarily residence can be confidently predicted, is both just and legitimate. It accords with principles of justice already embraced by liberal democratic states, including equality and reciprocity. Moreover, it delineates redistributive obligations that align with the scope of solidarity among, and is therefore acceptable to, members of pluralistic liberal

124 125 democratic societies. Then, in Chapter 6, I turn my attention to migrants who have not established ordinary residence and whose likelihood of doing so cannot be easily foretold. I argue that even though these individuals may not, at least not yet, be considered “one of us,” they are still sufficiently connected to “us” in terms of what shapes their health status and who is best placed to assist them in times of need. As such, these non-members must at the minimum be guaranteed access to a basic set of health care while in Western receiving countries.

In this chapter, my aim is to problematize the cost-saving and fraud-deterrence claims often made by opponents of migrants’ health care entitlement and to uncover the structure of social exclusion that fuels, as well as feeds off of, these claims. I begin with an empirical examination to demonstrate that the validity of these two assertions rests on relatively shaky grounds. But even if we were to ignore this evidentiary problem and to accept the plausibility of the cost- saving and fraud-deterrence arguments, I puzzle over why the same rationales, despite being equally applicable, have not been employed with the same degree of success to deny health care entitlement to citizens in Western receiving countries. Such uneven deployment of cost-saving and fraud-deterrence claims, I submit, point to a system of social exclusion as the ultimate driver of the opposition to migrants’ health care entitlement. Such an exclusionary process sustains the rhetoric of cost saving and fraud deterrence, which it then draws on to distinguish migrants as undeserving outsiders. Given this social exclusion underpinning, the tenability of unequal health care entitlement between international migrants and citizens thus depends on whether the alienation of the former by receiving societies can be normatively supported. That is, with respect to health care coverage, is it just and legitimate to delimit the borders of “us” and “them” along citizenship status? In posing this question, the chapter sets the stage for Chapter 5, where I will turn my attention to how membership in Western liberal democracies should be defined for the purpose of assigning health care entitlement.

4.2 Empirical Problems of Prevailing Objections to Migrant Health Care Entitlement

As seen in the previous chapters, objections to equal health care coverage between migrants and citizens in Western receiving countries are often couched in languages of cost containment and fraud deterrence. Recall Canada’s curtailment of its refugee health care program, the Interim Federal Health Program (“IFHP”), in 2012 for instance. The measure was touted as a reform that

126 would “ensure that tax dollars are spent wisely and defend the integrity of [the] immigration system all at the same time.”1 Specifically, on the cost-saving front, the scale-down was projected to reduce the Canadian federal government’s spending by $100 million during the first five years of its implementation.2 And according to then Immigration Minister, Jason Kenney, the policy changes was meant to deter so-called “bogus refugees” as well by making sure that “potential fraudsters [would not be] receiving ‘gold-plated’ extras that average Canadians don’t get.”3 Outside Canada, migrant health care cuts have similarly been held out as accomplishing the same dual purpose. As a case in point, Spain’s decision, also in 2012, to eliminate health care entitlement of undocumented migrants was presented by its Prime Minister at the time as both a necessary austerity measure in the wake of a financial crisis—with the cutback expected to generate €1.5 billion annual savings for the government—and a crackdown on alleged abuse of its health care system by foreign health tourists disguising as migrants.4

The cogency of the cost-saving and fraud-deterrence arguments, however, is routinely contested by opponents of migrant health care cuts. Part of such criticism has centered on the tendency for governments to ground their assertions in anecdotes or conjectures instead of scientific evidence. Consider again Canada’s IFHP reform as an example. With respect to the purported cost saving, commentators observed that no statistical reports were ever released by the Canadian government to corroborate its projection, and that it was puzzling for the valuation of cost saving to remain unchanged even after the government’s eleventh-hour decision to cancel the benefit cuts for some refugees.5 Likewise, critics have disputed the evidentiary basis of the supposed

1 Citizenship and Immigration Canada, News Release, “Reform of the Interim Federal Health Program Ensures Fairness, Protects Public Health and Safety” (25 April 2012), online: Government of Canada .

2 Ibid.

3 Tobi Cohen, “‘Bogus Refugees’ Sap Health Care”, Vancouver Sun (1 August 2012) B2.

4 “Spain Cuts Education and Health Care Spending”, CBC News (20 April 2012), online: ; Harold Heckle, “Protesters Decry Spain’s Move to Deny Many Illegal Immigrants Free Health Care”, The [Montreal] Gazette (1 September 2012), online: .

5 Neil Arya, Josephine McMurray & Meb Rashid, “Enter at Your Own Risk: Government Changes to Comprehensive Care for Newly Arrived Canadian Refugees” (2012) 184:17 CMAJ 1875 at 1876.

127 need for the IFHP cuts as a protection against immigration fraud. They noted that there was no concrete proof that health tourism was ever a problem in Canada or the provision of free health care to refugees was incentivising such a practice. As Justice Mactavish ruled in Canadian Doctors for Refugee Care v Canada (AG), the legal challenge against the IFHP curtailment, the fear of foreign nationals making unfounded refugee claims only to take advantage of Canada’s health care system was based solely on “subjective perceptions,” and “no attempt appears to have been made by the government to determine whether this subjective perception is in fact objectively justified.”6 Prima facie, observations like these cast doubt on the evidence-based nature of Western receiving countries’ migrant health care policies.

In this section, I will subject the leading objections against equal health care entitlement between citizens and migrants to closer empirical scrutiny. Based on available data, I show that the effectiveness of migrant health care disentitlement in realizing the twin objectives of cost- and immigration-control is inconclusive. Insofar as this evidentiary flaw has been made known for some time, it raises the question of why the narratives of cost saving and immigration fraud deterrence continue to enjoy political purchase in many Western societies today.

4.2.1 Migrant Health Care Disentitlement and Public Spending

I start my empirical analysis by appraising the claim that restricting migrants’ health care entitlement would help control public spending. At first glance, it seems logical that decreasing the number of people receiving publicly-funded health care would reduce government spending. However, this intuition assumes that, first, international migrants are significant consumers of health care services and products such that their exclusion from public health care coverage would result in noticeable savings, and second, any savings from coverage reductions would not be offset in the long term by costs associated with the deleterious effects of an increased level of uninsurance in society. A scan of literature suggests that both assumptions are open to doubt.

Concerning the first assumption about the supposed burden imposed by migrants on receiving countries’ health care systems, researchers have commonly observed a “healthy immigrant

6 2014 FC 651 at paras. 967-968.

128 effect” in Western countries where newly arrived migrants boast better health on average when compared with native-born populations.7 For instance, a systematic review of Canadian studies reveals that, upon arrival in the country, over 90% of international migrants reported having very good to excellent health and performed better, or at least on par with, Canadian residents on many health indicators.8 This relative good health is usually attributed to newcomers’ self- selection as well as receiving states’ immigrant screening process, both of which favour socioeconomically privileged candidates while militate against those living with chronic illnesses or disabilities.9 Although migrants’ initial health advantage eventually dissipates as a result of acculturation and experience with negative health determinants in host societies (e.g., immigration-related stress, discrimination, and socioeconomic inequality),10 evidence shows that they are largely as healthy and use the same amount of health services as their native-born comparators.11 These findings bring into question the degree of saving that receiving countries can hope to achieve by excluding international migrants from publicly-financed health care. At least during the early stages of settlement where the healthy immigrant effect is more pronounced, disqualifying migrants from public health care coverage would appear to reap limited fiscal benefits. As migrants’ health status converges with that of local residents, the cost control rationale raises a different concern: why should savings not be derived from denying or curtailing the health care entitlement of both migrants and citizens if the two groups have similar health care usage? I will return to this issue in the next section. For now, let me turn my attention to the second assumption that underlies the cost argument, namely savings from reduction in

7 See e.g., Steven Kennedy et al, “The Healthy Immigrant Effect: Patterns and Evidence from Four Countries” (2015) 16 J. Intl. Migration & Integration 317; Bruce Newbold, “The Short-Term Health of Canada’s New Immigrant Arrivals: Evidence from LSIC” (2009) 14:3 Ethnicity & Health 315.

8 Brian Gushulak et al, “Migration and Health in Canada: Health in the Global Village” (2011) 183:11 CMA J E952.

9 Ilene Hyman, “Setting the Stage: Reviewing Current Knowledge on the Health of Canadian Immigrants” (2004) 95:3 Can J Public Health I-4.

10 Edward Ng et al, Dynamics of Immigrants’ Health in Canada: Evidence from the National Population Health Survey (Ottawa: Statistics Canada, 2005); Gushulak supra note 8 at E956; Fernando De Maio & Eagan Kemp, “The Deterioration of Health Status among Immigrants to Canada” (2010) 5:5 Global Public Health 462. For a more detailed discussion of the social determinants of health experienced by migrants in receiving countries, see section 6.2.2 in Chapter 6.

11 Peter Dungan, Tony Fang & Morley Gunderson, “Macroeconomic Impacts of Canadian Immigration: Results from a Macro Model” (2013) 51 British J Industrial Relations 174 at 179-180.

129 government’s health care responsibilities will outweigh the costs brought about by migrants’ lack of health care coverage.

A systematic analysis of relevant literature published in North America undertook by Manya Newton et al. in 2008 finds that uninsured individuals in general often postpone seeking necessary health care, in part to minimize out-of-pocket spending, especially if they already carry medical debt.12 Such delay in health care access is also identified among migrants that are without adequate health care coverage. For instance, in the U.S., Neeraj Kaushal and Probert Kaestner reviewed national survey data and discovered that the 1996 Personal Responsibility and Work Opportunity and Reconciliation Act (“PRWORA”), which stripped numerous migrants of their means-tested health care benefits, was associated with significant increases in the proportion of low-income migrant women who reported having postponed or abstained from seeking medical attention because of inability to pay.13 When compared with the period between 1992 and 1996, they estimated that between 1998 and 2002, the probability of these migrant women visiting a health care professional in the past 12 months decreased by 11%.14 In the same vein, a Canadian study involving retrospective chart audits discovered that, on average, uninsured women—96% of whom in the study were migrants—presented for their initial prenatal care 13.6 weeks later than their insured counterparts and were less likely to receive the recommended screening tests.15 These findings are echoed by results from qualitative interviews conducted by Ritika Goel and colleagues with new immigrants to Ontario who must wait for three months before qualifying for provincial health care insurance.16 All participants in their study expressed having pushed back plans for health care seeking given the lack of public coverage. They observed, among others:

12 “Uninsured Adults Presenting to US Emergency Department: Assumptions vs Data” (2008) 300 J American Medical Assoc 1914.

13 “Welfare Reform and Health of Immigrant Women and Their Children” (2007) 9 J Immigrant Health 61.

14 Ibid.

15 Catherine Jarvis et al, “Retrospective Review of Prenatal Care and Perinatal Outcomes in A Group of Uninsured Pregnant Women” (2011) 33 J Obstetrics & Gynaecology Can 235.

16 Ritika Goel, Gary Bloch & Paul Caulford, “Waiting for Care: Effects of Ontario’s 3-month Waiting Period for OHIP on Landed Immigrants” (2013) 59 Can Family Physician e269.

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A 59-year-old man from China hid his symptoms of stroke from his daughter and waited 3 months before seeking care owing to cost. A 7-year-old boy with transposition of the great arteries waited 3 months in congestive heart failure until the end of the waiting period for surgery. A 2-year-old girl found to be HIV-positive during immigration screening waited 3 months before seeing a specialist for a care

plan and counseling.17

Research with uninsured persons suggests that cost-related treatment delay risks causing patients’ health conditions to deteriorate and potentially preventable complications to arise.18 As a result, when the uninsured do finally present to health care facilities, they tend to require more intensive treatment such as hospitalization and emergency care.19 A 2008 report by the U.S. National Academies of Science, Engineering, and Medicine concluded that at least with respect to the five diseases examined—namely, diabetes, cardiovascular disease, end-stage renal disease, HIV/AIDS and mental illness—uninsured patients’ health outcomes were consistently poorer than that of insured individuals.20 By way of example, when compared with those having medical insurance, uninsured adults with diabetes were found more likely to have uncontrolled blood glucose levels, thus increasing their chances of developing additional complications and disability as well as needing hospitalization.21 Similar findings have emerged from studies with uninsured migrants specifically. A Canadian study that reviewed the medical records of over 2,000 migrant children observed that those without any public health care coverage were much

17 Ibid at e273.

18 See e.g., Debra K. Moser et al, “Reducing Delay in Seeking Treatment by Patients with Acute Coronary Syndrome and Stroke: A Scientific Statement from the American Heart Association, Council on Cardiovascular Nursing and Stroke Council” (2006) 114 Circulation 168; Richard G. Roetzheim, et al, “Effects of Health Insurance and Race on Early Detection of Cancer” (1999) 91 J National Cancer Institute 1409.

19 See e.g., Michaela Hynie, Chris Ardern & Angela Robertson, “Emergency Room Visits by Uninsured Children and Adult Residents in Ontario, Canada: What Diagnoses, Severity and Visit Disposition Reveal About the Impact of Being Uninsured” (2016) 18 J Immigrant & Minority Health 948; Joel S. Weissman et al, “Delays Access to Health Care: Risk Factors, Reasons, and Consequences” (1991) 114 Annals Internal Medicine 325.

20 Institute of Medicine of the National Academies, Insuring America’s Health: Principles and Recommendations (Washington, DC: National Academies Press, 2004) at 45 [Insuring America’s Health].

21 Ibid.

131 more likely to present at emergency rooms with more acute medical conditions, particularly injuries/lacerations and severe mental health issues.22 Notably, relative to routine outpatient care, the costs of hospitalization and outpatient visits to emergency departments are typically much higher.23 Relying on data from California, Anil Bamezai and Glenn Melnick calculated that the average cost of seeing each outpatient in emergency rooms was more than twice the cost of treating an outpatient in other hospital departments, while the cost relating to each inpatient hospital care was even greater.24

As identified in Chapter 2, in many receiving countries (e.g., Australia, Canada, U.K. and U.S) where migrants are not entitled to the same health care coverage as citizens, there is nevertheless a legal duty on health care providers to attend to uninsured persons in cases of medical emergency, although providers may be allowed to bill the patients subsequently to recover their expenses.25 If health providers are unwilling to waive the charges and uninsured patients cannot afford to pay their medical bills, governments are often left to pick up the costs of the unpaid-for care. In the U.S., between 1996 and 2005, as the ranks of the medically uninsured grew by almost 7 million, the annual cost of hospital care not paid by patients rose from less than US$20 billion to nearly US$30 billion.26 A 2008 study estimated that 75% of such uncompensated care in the U.S. ultimately came to be covered by public funding, with the remainder assumed by health practitioners and hospitals as donated services or forgone profits.27 Even in the latter situation, there are typically administrative outlays incurred by service providers that end up falling, at least partially, on the shoulder of government. Some of these administrative costs are

22 Cécile Rousseau et al, “Uninsured Immigrant and Refugee Children Presenting to Canadian Paediatric Emergency Departments: Disparities in Help-Seeking and Service Delivery” (2013) 18:9 Paediatrics & Child Health 465.

23 Newton, supra note 12 at 1920.

24 “Marginal Cost of Emergency Department Outpatient Visits: An Update Using California Data” (2006) 44:9 Medical Care 835.

25 See generally, Anne F Walker, “The Legal Duty of Physicians and Hospitals to Provide Emergency Care” (2002) 166:4 CMAJ 465.

26 Susan Okie, “Immigrants and Health Care: At the Intersection of Two Broken Systems” (2007) 357:6 New England J Med 525 at 527.

27 Jack Hadley et al, “Covering the Uninsured in 2008: Current Costs, Sources of Payment, and Incremental Costs” (2008) 27:5 Health Affairs w399.

132 attributable to the extra time that frontline workers, unlike in the context of universal coverage, must devote to verifying the eligibility of each patient.28 Another source of the administrative costs is the additional energy that practitioners often need to spend on assisting uninsured patients with obtaining financial support. As Justice Mactavish observed in Canadian Doctors for Refugee Care:

[A] community health centre employee … described the hours that he spent negotiating and advocating on [one of the migrant plaintiffs’] behalf—time that could otherwise have been spent attending to the health care needs of other patients. Other health care providers have provided similar evidence with respect to the additional time that they have had to spend on behalf of patients as a result of the 2012 changes to the IFHP. There is, of course, an administrative cost to all of this

that is borne by publicly-funded health care institutions.29

These expenses arguably undercut whatever cost savings that governments stand to gain by restricting the number of people that are eligible for public health care coverage.

Equally, if previously uninsured migrants now acquire health care entitlement following changes in their legal status in the receiving country, then the charges for attending to their heretofore neglected health issues will normally have to be assumed by public programs. Moreover, studies show that, due to reasons ranging from misinformation on the part of service providers to patients’ inability to meet various documentation requirements, restricting certain migrants’ health care benefits could impede the health care access of other migrants that are publicly insured as well as citizen children born to uninsured migrant parents.30 Many of the inflated

28 Jeffrey T. Kullgren, “Restrictions on Undocumented Immigrants’ Access to Health Services: The Public Health Implications of Welfare Reform” (2003) 93:10 American J Public Health 1630 at 1632.

29 Supra note 6 at para. 1065.

30 See e.g., Nancy Kelley & Juliette Stevenson, First Do No Harm: Denying Healthcare to People Whose Asylum Claims Have Failed (London: Refugee Council, 2006); Wendy Zimmermann & Michael Fix, “Immigration and Welfare Reforms in the United States Through the Lens of Mixed-Status Families” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 59.

133 health care costs stemming from these individuals’ delayed service utilization must, too, be borne by governments.

Expanding the pool of medically uninsured also risks diminishing the capacity of society to prevent, detect, and remedy public health threats in a timely fashion, which in turn could elevate the cost of eventual public health responses.31 Although migrants are generally healthy, epidemiological data suggests they are vulnerable to contracting certain communicable illnesses.32 In many Western receiving countries, for example, foreign-born individuals are overrepresented in reported tuberculosis cases,33 owing in part to their higher likelihood of experiencing poverty, malnutrition, and overcrowded living conditions that expose them to or reactivate the disease.34 To the extent that the exclusion of migrants from publicly-financed health care interferes with the prompt diagnosis and treatment of these illnesses, it heightens the risk of untreated infections spreading in the community.35 And if this threat comes true, government resources are likely needed to contain the outbreak.

Once all these expenditures are considered, the odds of migrant health care restrictions leading to net savings in the long run are arguably suspect. The limited amount of empirical data available appears to bear out this prognosis. For example, California’s attempt in 1996 to defund prenatal care for undocumented migrant women prompted a series of studies into the long-term costs and

31 Arijit Nandi, Sana Loue & Sandro Galea, “Expanding the Universe of Universal Coverage: The Population Health Argument for Increasing Coverage for Immigrants” (2009) 11 J Immigrant & Minority Health 433.

32 See e.g., Kevin Pottie et al, “Evidence-Based Clinical Guidelines for Immigrants and Refugees” (2011) 183 CMAJ E824 at E827-E828; Manuel Carballo, Jose Julio Divino & Damir Zeric, “Migration and Health in the European Union” (1998) 3 Tropical Medicine & Intl Health 936 at 937.

33 Bruno Abarca Tomás et al, “Tuberculosis in Migrant Populations: A Systemic Review of Qualitative Literature” (2013) 8:12 PLoS ONE e82440.

34 See e.g., Sean Park, “Substantial Barriers in Illegal Immigrant Access to Publicly-Funded Health Care: Reasons and Recommendations for Change” (2004) 18 Geo Immigr LJ 567 at 579; Sylvia Reitmanova & Diana Gustafson, “Rethinking Immigrant Tuberculosis Control in Canada: From Medical Surveillance to Tackling Social Determinants of Health” (2012) 14 J Immigrant & Minority Health 6.

35 Caroline Lacroix et al, “The Delay in Diagnosis of Tuberculosis in the Monteregie Region of Quebec, Canada” (2008) 11 McGill J Medicine 124 at 125.

134 benefits of such a policy measure. In one study, statistical modelling predicted that eliminating prenatal care coverage would increase the incidence of adverse pregnancy outcomes among undocumented migrant women as a result of undiagnosed and/or untreated sexually transmitted infections.36 It was shown that the direct medical costs associated with these adverse pregnancy outcomes alone, without taking into account potential outlays unrelated to sexually transmitted infections, would offset California’s anticipated savings by as much as 34.9%.37 Indeed, in another study, Michael Lu and colleagues found that the government’s projected savings would be further erased as women receiving no prenatal care would have significantly higher rates of premature delivery and giving birth to infants with low birth weight, both requiring more intensive care. Based on their retrospective examination of the medical records of 970 undocumented migrants, they found that for every dollar that California hoped to save by cutting the publicly-funded prenatal care for undocumented migrants, the costs of postnatal care and future medical treatment for the American-born infants would rise by US$3.33 and US$4.63 respectively.38

Similar conclusion concerning the cost of restricting migrants’ health care entitlement has also been reached by research outside the reproductive care context. David Sheikh-Hamad and his team reviewed the medical files of migrants with end-stage renal disease (“ESRD”) in a Houston hospital, and found that it cost the government on average $238,000 per patient per year when migrants with ESRD were forced to rely on emergency hemodialysis when their condition became critical.39 This was 3.7 times more expensive than the average annual cost of placing an ESRD patient on maintenance dialysis three times a week. The researchers attributed such cost differential in part to more frequent hospital admission among those receiving only emergency

36 Heather Kuiper et al, “The Communicable Disease Impact of Eliminating Publicly Funded Prenatal Care for Undocumented Immigrants” (1999) 3 Maternal & Child Health J 39.

37 Ibid.

38 “Elimination of Public Funding of Prenatal Care for Undocumented Immigrants in California: A Cost/Benefit Analysis” (2000) 182 American J Obstetrics & Gynecology 233.

39 “Care for Immigrants with End-stage Renal Disease in Houston: A Comparison of Two Practices” (2007) 103:4 Texas Medicine 53.

135 care, as well as the higher chances of these patients developing medical complications that require more intensive treatment.40

Research relating to the impact of Canada’s 2012 IFHP cuts lends further credence to the suggestion that limiting migrants’ public health care coverage may not result in overall cost savings. A chart review conducted by Francis Bakewell and colleagues in Ottawa discovered that, relative to the status quo ante, after the IFHP retrenchment, a larger proportion of refugee patients who sought care at emergency departments reported having no family physicians.41 Indeed, following the cuts, incidents of uninsured patients forgoing primary care and later needing to present at emergency rooms began to surface.42 Evidence indicated that much of the cost associated with such emergency room visits was assumed by hospitals. According to Bakewell et al., the amount of emergency care provided by Ottawa’s hospitals to refugees that was uncompensated by the IFHP increased by 10 percentage points post June 2012, and 75% of these costs had not been paid by patients, either.43 Another retrospective review of medical records at Toronto’s Hospital for Sick Children similarly revealed that 93% of its emergency room bills submitted to the IFHP after the 2012 cuts were not publicly reimbursed, leaving most of these expenses to be absorbed by the hospital.44 In a qualitative study, a story recounted by an employee of a refugee services organization poignantly put a human face to these hard numbers.45 The interviewee observed:

We just saw a [refugee] woman who came 7 months’ pregnant. She came with malaria and was in the hospital for more than a week and because she went to the

40 Ibid.

41 “Use of the Emergency Department by Refugees Under the Interim Federal Health Program: A Health Records Review” (2018) 13:5 PLoS ONE e0197282.

42 See e.g., “Health Care for Refugees” (last visited 13 February 2020), online: Canadian Association of Refugee Lawyers .

43 Supra note 41.

44 Andrea Evans et al, “The Cost and Impact of the Interim Federal Health Program Cuts on Child Refugees in Canada” (2014) 9:5 PLoS ONE e96902.

45 Valentina Antonipillai et al, “Impacts of the Interim Federal Health Program Reforms: A Stakeholder Analysis of Barriers to Health Care Access and Provision for Refugees” (2017) 108:4 Can J Public Health e435.

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emergency they put her in the ICU and with all the specialists; they were sending her

bills. Her bill is more or less $30,000 and she doesn’t have a way to pay.46

The fact that most of the uncompensated medical costs incurred by refugees following the IFHP cuts came to be shouldered by hospitals meant that such outlays were largely borne by the public at the end of the day, as Canadian hospitals receive a substantial percentage of their funding from provincial governments.47 Thus, despite the federal government’s contention that the IFHP cuts would reduce public spending by an average of $20 million annually in the first five years, some provinces argued that the retrenchment actually increased their health care expenditures. In 2013, Ontario, Quebec and Manitoba—which together hosted nearly 80% of refugee claimants in

Canada at the time48—suggested the IFHP changes had cost them a total of $25.7 million in additional health care spending each year.49 To the extent that these figures were reliable, they cast further doubt on the cost-containment capacity of migrant health care restrictions.

Before wrapping up my literature review on this topic, I note that migrants’ un- and/or under- insurance in the longer term may negatively impact on more than just government’s health care spending. Poor health resulting from inadequate access to care typically leads to losses in human capital as work productivity declines and children’s development stalls.50 Although systematic examination of its precise effects on governments’ fiscal condition remains scarce at present,51 logically, waste of human capital could result in reduced tax revenues and increases in public expenditure on social programs. Once situated within such broader economic considerations, the

46 Ibid. at e438.

47 Jason M Sutherland et al, Paying for Hospital Services: A Hard Look at the Options (Toronto: C.D. Howe Institute, 2013).

48 Citizenship and Immigration Canada, Canada Facts and Figures 2012: Immigration Overview—Permanent and Temporary Residents (Ottawa: Ministry of Public Works and Government Services Canada, 2013) at 97.

49 Theresa Boyle, “Health Ministers Tackle Cuts to Refugee Care: Ottawa Shows No Sign of Budging on Decision to Reduce Coverage”, Toronto Star (4 October 2013) A3.

50 Cécile Rousseau et al, “Health Care Access for Refugees and Immigrants with Precarious Status” (2008) 99:4 Can J Public Health 290; Insuring America’s Health, supra note 20.

51 Insuring America’s Health, supra note 20 at 59.

137 chances of government realizing any real savings by reducing or eliminating migrants’ health care coverage become even more questionable.

4.2.2 Migrant Health Care Disentitlement and Immigration Control

Along with the cost-saving narrative, limits on migrant health care entitlement are also often presented by Western receiving countries as a necessary response to the alleged fraud committed by migrants. In particular, as seen in previous chapters, family-class immigrants, asylum seekers, and undocumented migrants have been the main targets of this claim, being frequently painted as health tourists or immigration cheats and having their ability to sustain oneself economically under constant scrutiny.52 According to this logic, the provision of public health care coverage to migrants incentivizes undesired forms of immigration. It is presumed that foreign nationals who are otherwise unable to receive necessary medical treatment would seek entry into Western countries to take advantage of quality public health care that is on offer. And if they are unable to do so through regular immigration channels, it is surmised that they would likely seek admission into and remain in the destination country either without legal authorization or by misrepresenting themselves on immigration or refugee applications. The removal of migrants from public health care programs therefore functions both as a punishment for these migrants’ defiance of the law and as a signal to discourage future unlawful immigration, thus protecting the integrity of the immigration system.53

However, even to the casual eye, the contention that paring down migrants’ health care entitlement would disincentivize unsanctioned immigration seemingly rests on tenuous empirical foundations. To name but one occurrence that arguably contradicts this proposition, in the U.S., notwithstanding the enactment of PRWORA in 1996 that excluded undocumented migrants from many of the public health care programs, the number of foreign nationals residing in the country

52 See e.g., Rosalind Bragg & Rayah Feldman, “‘An Increasingly Uncomfortable Environment’: Access to Health Care for Documented and Undocumented Migrants in the UK” in Rachel Sabates-Wheeler & Rayah Feldman, eds, Migration and Social Protection: Claiming Social Rights Beyond Borders (New York, 2011: Palgrave Macmillan) 143; Lynn Fujiwara, “Immigrant Rights Are Human Rights: The Reframing of Immigrant Entitlement and Welfare” (2005) 52 Soc Problems 79.

53 See e.g., Matthew R. Smith, “Reaction to Health Care Challenges for Non-Citizen Immigrants in the U.S.” (2011) 3 Georgetown JL & Modern Critical Race Perspectives 169.

138 without lawful authorizations continued to climb; this upward trend only ceased in the late 2000s when the U.S. economy went into a deep recession.54 To a large extent, the fallacy of the fraud deterrence claim lies in its debatable premise, which presumes access to health care would exert sufficiently strong influence over people’s migration-related decisions. For this presumption to hold true, migrants must have at least some a priori awareness of the type of health care benefits available to them in their destination of choice. But in reality, evidence demonstrates that many migrants, especially those who most often attract the label of health tourists or immigration cheats, do not possess such knowledge.55 Moreover, migrants’ relatively good health during the early stage of the immigration and settlement process, as demonstrated by the healthy immigrant effect,56 also blunts the force of publicly-funded health care as a pull factor.

The validity of the immigration fraud deterrence argument is further called into question by research concerning what is commonly referred to as the “welfare magnet hypothesis” in the literature. According to this hypothesis, the flow of in-migration to a country is in part determined by the generosity of the country’s social programs, which, depending on the study, may or may not be understood as encompassing health care coverage. While a handful of studies have shown that social benefits indeed serve as a draw for migrants, especially those deemed less skilled,57 the statistical strength of such correlation is often marginal.58 Moreover, as Neeraj Kaushal pointed out, many of these studies were afflicted with methodological

54 Jeffrey S. Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 (Washington, D.C.: Pew Research Center, 2011).

55 See e.g., Liesbeth Hearing & Rob van der Erf, “Why Do People Migrate?” in Statistics in Focus: Theme 3 ─ Population and Social Conditions (Luxembourg: Eurostat, 2001); Paul Caulford & Yasmin Vali, “Providing Health Care to Medically Uninsured Immigrants and Refugees” (2006) 174:9 CMAJ 1253.

56 See supra note 7 and accompanied text.

57 See e.g., George J Borjas, “Immigration and Welfare Magnets” (1999) 17:4 J Labour Economics 607; Marvin E Dodson, “Welfare Generosity and Location Choices Among New United States Immigrants” (2001) 21 Intl Rev L & Econ 47; Assaf Razin & Jackline Wahba, “Welfare Magnet Hypothesis, Fiscal Burden, and Immigration Skill Selectivity” (2015) 117:2 Scandinavian J Economic 369.

58 Alan Barrett & Yvonne McCarthy, “Immigrants and Welfare Programmes: Exploring the Interactions Between Immigrant Characteristics, Immigrant Welfare Dependence, and Welfare Policy” (2008) 24:3 Oxford Rev Economic Policy 543; Klaus F. Zimmermann et al, Study on Active Inclusion of Migrants (Institute for the Study of Labor & The Economic and Social Research Institute, 2012).

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shortcomings.59And once these problems were corrected, her research concluded that access to safety-net programs in the U.S., including Medicaid, had little to no impact on low-skilled migrant women’s settlement location choices.60 This finding parallels the results from a number of other empirical work conducted in the U.S. and Europe.61 In one of these studies, Jon Kvist considered migration within the European Union after its expansion in the 1980s to include

Greece, Spain, and Portugal.62 He observed that, contrary to what the welfare magnet hypothesis would predict, there had been no discernible changes in immigration patterns despite differences in social benefit generosity between the pre-existing and the newly acceded member states.63

Adding to the evidentiary problem associated with the welfare magnet hypothesis, research suggests that most migrants who are able to choose their destinations do so based on considerations other than the generosity of a jurisdiction’s social and health care regimes. These other factors include perceived economic opportunities, family connections, as well as familiarity with the languages and cultures in receiving countries.64 In one study that surveyed 973 undocumented migrants across four U.S. cities, researchers found that, contrary to worries about health tourism, less than 1% of the participants identified access to health and social services as the main reason for immigration.65 In contrast, a majority of the respondents cited either work or the desire to unite with family and friends as the most important motivation for

59 “New Immigrants’ Location Choices: Magnets without Welfare” (2005) 23 J Labour Economics 59 at 60.

60 Ibid.

61 See e.g., Madeline Zavodny, “Determinants of Recent Immigrants’ Locational Choices” (1999) 33 Intl Migration Rev 1014; Eric Neumayer, “Asylum Destination Choice: What Makes Some West European Countries More Attractive Than Others?” (2004) 5:2 EU Politics 155; Carmen Juravle et al, Fact Finding Analysis on the Impact on Member States’ Social Security Systems of the Entitlements of Non-active Intra-EU Migrants to Special Non- contributory Cash Benefits and Healthcare Granted on the Basis of Residence (ICF GHK, 2013).

62 “Does EU Enlargement Start a Race to the Bottom? Strategic Interaction Among EU Member States in Social Policy” (2004) 14:3 J European Soc Policy 301.

63 Ibid.

64 See e.g., Zavodny, supra note 61; Kate Day & Paul White, “Choice or Circumstance: The UK as the Location of Asylum Applications by Bosnian and Somali Refugees” (2001) 55 GeoJournal 15; Lawrence A. DeLuca, Marylyn M. McEwen & Samuel M. Keim, “United States─Mexico Border Crossing: Experiences and Risk Perceptions of Undocumented Male Immigrants” (2010) 12 J Immigrant & Minority Health 113.

65 Marc L Berk et al, “Health Care Use among Undocumented Latino Immigrants” (2000) 19:4 Health Affairs 51.

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immigrating.66 What is more, evidence reveals that a sizable body of migrants, particularly refugees and asylum seekers, lacks any real freedom to pick their country of destination as it is not unusual for such decisions to be dictated by circumstances and/or made solely by third parties that help facilitate their migration.67 For these migrants, clearly, the generosity of public health care programs in receiving countries would have minimal bearing on their location choices.

Together, these empirical data suggest the likelihood of curbing health tourism by limiting migrants’ health care entitlement is largely unproven. Above all, evidence indicates that receiving countries’ concern about health tourism is often overblown. Insofar as migrants are free to choose where to settle, eligibility for public health care in a destination country at best plays a minor role in migrants’ decision-making. When the existence of the alleged fraud appears doubtful in the first place, the fraud deterrence argument crumbles. Furthermore, even assuming health tourism is a sufficiently worrisome phenomenon that requires government intervention, the fact that many migrants are known to be unfamiliar with their health care entitlement in receiving countries arguably raises questions about migrant health care restrictions as an effective policy strategy.

4.3 Prevailing Objections to Migrants’ Health Care Entitlement and Social Exclusion

As seen, available evidence, albeit not fully conclusive, largely weighs against both cost-saving and fraud-deterrence rationales for excluding migrants from public health care coverage. In the face of such empirical shortcomings, which have been voiced by commentators for decades,68 the political currency that these arguments continue to carry in Western receiving countries

66 Ibid.

67 See e.g., Tetty Havinga & Anita Böcker, “Country of Asylum by Choice or by Chance: Asylum-seekers in Belgium, the Netherlands and the UK” (1999) 25 J Ethnic & Migration Studies 43; Day & White, supra note 64; Vaughan Robison & Jeremy Segrott, Understanding the Decision-making of Asylum Seekers (London, UK: Home Office Research, Development and Statistics Directorate, 2002).

68 See e.g., Leo R Chavez, “Undocumented Immigrants and Access to Health Services: A Game of Pass the Buck” (1984) 12:4/5 Migration Today 20; Kevin R. Johnson, “Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class” (1995) 42 UCLA L Rev 1509.

141 demands explanation. What is more, even if one accepts for the sake of argument the validity of cost-saving and fraud-deterrence claims, it would seem that these rationales can and should apply equally to citizens. And yet, as observed in Chapters 2, there are clear disparities between citizens’ and migrants’ health care coverage in Western receiving countries, suggesting that concerns of costs and fraud either have not been mobilized as frequently against citizens or, when they are advanced, have not been as successful in depriving citizens of their entitlement. These paradoxes, I argue, point to the presence of another driver more latent than the rhetoric of cost saving and fraud deterrence that opposes migrants’ receipt of citizen-like health care entitlement.

In the remainder of this chapter, I proffer one explanation for the ongoing popularity of the cost- saving and fraud-deterrence arguments and for the arguably inconsistent impact of these claims on migrants’ and citizens’ health care entitlement. I suggest that cost- and fraud-based resistance to migrants’ health care entitlement is better understood as a downstream effect of social exclusion in receiving societies, which aims at upholding citizens’ relative power and privileges. Through its interlocking processes of labelling, stereotyping, separation, status loss, and discrimination, social exclusion exploits the narratives of cost saving and fraud deterrence to brand migrants as generally undeserving relative to citizens as a group. The resulting stigmatization of migrants as burdening and fraudulent, in turn, perpetuates the power differential between citizens and migrants that kickstarts the operation of social exclusion in the first place. Viewed as such, the spectre of migrants evading immigration rules and becoming a burden on public coffers both contributes to and feeds on the exclusionary social order.

To make my case, I begin this section by fleshing out the disparate impact that cost- and fraud- related claims generally have had on migrants in comparison to citizens, and the us-versus-them logic that is often embedded within this citizen-migrant distinction. I then provide a brief account of social exclusion and its workings before taking a closer look at how the mantra of cost saving and fraud deterrence are tied to the social exclusion of migrants in receiving societies.

4.3.1 Uneven Impact of Cost-Saving and Fraud-Deterrence Claims

When compared with that of international migrants, citizens’ health care entitlement in Western receiving countries appears to have not experienced the same degree of assault in the name of

142 cost saving and fraud deterrence. For one, to the extent that immigration-related fraud may be aided or abetted by citizens, it is rarely suggested that the health care entitlement of these citizens should be similarly curtailed to further the goals of retribution and deterrence. Equally, outside the immigration-fraud context, the insistence on punishing and discouraging wrongdoings is seldom employed to justify the removal of health care benefits of citizen lawbreakers. To the best of my knowledge, no Western liberal democracies at present penalize their citizens for having been criminally accused or convicted by removing or restricting their entitlement to health care, although admittedly they do encounter barriers when accessing some health services when incarcerated.69 It is tenuous, I submit, to attribute these diverging policy approaches to the exceptionally egregious nature of immigration-related transgressions, given that such conducts as migrants’ unauthorized entry or presence, while grounds for deportation, do not even amount to criminal offenses in some Western receiving countries.70

Likewise, the logic of cost saving has not affected citizens’ health care entitlement to the same degree as it has that of migrants. This is not to say that cost-related concerns have never been advanced by governments as justification for denying citizens’ access to certain health care services or products. In Canada, for instance, the worry of potentially incurring significant expenditure has been one of the factors that hold governments back from implementing a universal pharmaceutical drug coverage.71 However, contrary to the experience of many migrants, the motive of cost saving has by and large spared citizens of Western industrial countries—with the U.S. being a clear outlier, especially prior to the passage of the Patient

Protection and Affordable Care Act in 201072—from wholesale deprivation of health care coverage. By way of example, when Spain introduced a series of emergency health care reform

69 See e.g., Adam Miller, “Prison Health Care Inequality” (2013) 185:6 CMAJ E249; Rabia Ahmed, “Access to Healthcare Services During Incarceration among Female Inmates” (2016) 12:4 Intl J Prisoner Health 204.

70 See e.g., “Criminalization of Illegal Entry Around the World” (20 September 2019), online: Law Library of Congress .

71 Steven G Morgan & Katherine Boothe, “Universal Prescription Drug Coverage in Canada: Long-promised Yet Undelivered” (2016) 29:6 Healthcare Management Forum 247.

72 See e.g., “Medicare for All?” Wall Street Journal (29 October 2007) A18; Megan McArdle, “Medicare for All … Residents of Fantasyland”, The Washington Post (1 August 2018) A15.

143 in 2012 to combat a growing deficit problem, spending cuts resulted in the blanket exclusion of adult undocumented migrants from the country’s universal health care program, while copayments were imposed on a broader array of health care services and products for everyone else.73 Recall also Ontario’s health care cuts in 1994 to rein in public spending. A three-month waiting period was implemented and a number of services were de-insured, both of which affected everyone who qualified for public health care. For asylum seekers, international students, and some temporary migrant workers, however, health care entitlement was completely eliminated.74

There is nothing inherent in the cost-saving and fraud-deterrence rationales that requires migrants to bear the brunt of the pressure to scale back publicly-financed health care benefits. The uneven health care consequences of these arguments’ deployment, therefore, point to the workings of another more insidious societal factor. In particular, implicit in how concerns about costs and fraud have been used to shape health care entitlement in Western countries appears to be a belief that citizens and migrants invoke different considerations with respect to resource allocation. According to this particularistic logic, ceteris paribus, citizens of receiving countries ought to enjoy priority to health care over foreign nationals, especially when resources are limited. Such prioritization of citizens modifies the general desire to save costs into a preoccupation with reducing migrant-specific government spending above all else. Similarly, it calls out the prospect of health tourism as a particularly grievous threat to society that necessitates the withholding of health care as punishment and deterrence.

This unstated premise comes to light when one considers the frequent framing of migrants’ health care denial as a means to not only reduce public outlays but also generate extra revenues, which could be put toward ensuring the sustainability of public health care for those who are

73 Helena Legido-Quigley et al, “Will Austerity Cuts Dismantle the Spanish Healthcare System?” (2013) 346 BMJ 18.

74 Irshad (Litigation guardian of) v Ontario (Ministry of Health) (2001), 55 OR (3d) 43.

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rightful members of society.75 As a case in point, in 1994, when defending her government’s decision to discontinue certain migrants’ public health care coverage, Ontario’s Minister of Health of the day remarked: “Previous governments have allowed international students and foreign workers to use Ontario’s health care system since the 1970s. But we need tighter controls on health care spending today to preserve the system for Ontario residents.”76 What statements like this make clear is that for the purpose of health care resource allocation, there is a world of difference between citizens and (at least some) migrants, with the latter’s interest coming second to that of the former. In fact, attending to migrants’ health care needs is said to come at the expense of citizens’ health care security. Thus, as Brietta Clark put it, “[a]rguments favoring [migrants’] benefit restrictions reflect the narrative of an ‘Us-Them’ dichotomy in which immigrants are labeled as criminals and welfare-abusers who jeopardize the health care of law- abiding citizens.”77 This us-versus-them mindset, I argue, evidences the social exclusion of migrants commonly observed in receiving societies. Before elaborating on such othering of migrants, let me first provide a high-level description of social exclusion and its mechanism.

4.3.2 An Overview of Social Exclusion

The term “social exclusion” was first coined by René Lenoir in the 1970s to refer to French residents who were left out of the country’s employment-based social security schemes, including people with disabilities, drug users, and single parents, among others.78 Over the next two decades, the narrative of exclusion was applied by French politicians to an expanded list of social problems such as employment challenges confronting youth, rising discrimination and xenophobia against racialized migrants, and ghettoization of suburbs.79 Exclusion, in relation to these matters, was used to capture a perceived threat to “class solidarity based on unions, the labour market, and the

75 See e.g., Haroon Siddique, “NHS to Charge Non-EU Patients 150% of the Cost of Treatment”, The Guardian (15 July 2014) 11; Anne Swardson, “Canada’s Vaunted Health Care System Limiting Coverage, Reducing Services”, The Washington Post (19 April 1994) A12.

76 Ontario, Legislative Assembly, Official Report of Debates (Hansard), (31 March 1994) at 1349 [emphasis added].

77 “The Immigrant Health Care Narrative and What it Tells Us About the U.S. Health Care System” (2008) 17 Ann Health L 229 at 231.

78 Hilary Silver, “Social Exclusion and Social Solidarity: Three Paradigms” (1994) 133 Intl Labour Rev 531 at 532.

79 Ibid. at 532-535

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working-class neighbourhood and social networks.”80 In the early 1990s, the language of social exclusion began to spread outside France and was increasingly adopted by European Union bodies and global development agencies like the World Bank and the International Labour Organisation to describe individuals who lack resources, particularly employment and educational opportunities, to achieve financial security.81 From there, social exclusion grew in prominence in both policy and academic circles and came to encompass a broader set of deprivation experienced by people. As a case in point, in the U.K., the Social Exclusion Unit was established in 1997 under the Cabinet Office to “prevent social exclusion, make sure mainstream services deliver for everyone and reintegrate people who have fallen through the welfare net.”82 Contrary to narrower usage of the expression by E.U. and others to focus on poverty and unemployment, the Social Exclusion Unit understands it to mean the circumstances facing people or communities that “suffer from a combination of linked problems such as unemployment, poor skills, low incomes, poor housing, high crime, poor health and family breakdown.”83

As its genealogy illustrates, the substance of social exclusion can be nebulous and malleable. Nevertheless, as Arjan de Haan pointed out, the various interpretations of the term do share certain commonalities.84 First, irrespective of definitional differences, social exclusion is consistently viewed as the antithesis of proper integration of people in society. It “operates to prevent people from participating in the mainstream activities of society and accessing the standards of living enjoyed by the rest of society.”85 In other words, it denotes the active creation of an “other” that does not fully belong to the community of “us.” Depending on one’s philosophical bent, such struggles with social integration are said to stem from people being denied of material resources, vocational opportunities, social networks, capabilities, and/or rights. Second, social exclusion is

80 Ibid. at 533.

81 Ann Taket et al, eds, Theorising Social Exclusion (New York: Routledge, 2009) at 6.

82 Mark Cronin, “Political and Legal Context” in Mark Cronin, Karen Argent & Chris Collett, eds, Poverty and Inclusion in Early Years Education (New York: Routledge, 2017) 34 at 39.

83 Ibid. at 2.

84 “‘Social Exclusion’: An Alternative Concept for the Study of Deprivation?” (1998) 29 IDS Bull 10 at 12-13.

85 Taket, supra note 81 at 10.

146 generally accepted as a multi-dimensional and multi-scalar concept. Not only does the deprivation experienced by people frequently cut across social, economic, cultural, legal, and political domains, but it also exerts its influence on individual, community, as well as societal levels. This suggests that social exclusion is rarely a one-off occurrence of mistreatment, but a result of systemic social closure involving mutually enforcing structural forces and institutions. Thus, de Haan observed, the study of social exclusion usually “goes beyond the analysis of resource allocation mechanisms, and includes power relations, agency, culture and social identity.”86 Third, and closely connected to the foregoing, most commentators today consider social exclusion as both an outcome and a process. Beyond the consequences of exclusion, it shines a spotlight on the systemic mechanisms and power imbalances that precipitate such results in the first place. As Ronald Labonte put it, social exclusion “is not about categories of people but about the relations of power that categorize people.”87 It is such emphasis on the dynamics of deprivation and social closure that separates social exclusion from similar concepts of poverty, unemployment and the like that tend to be reduced to mere personal statuses.

These defining features of social exclusion are deftly encapsulated by Jennie Popay and colleagues. In a 2008 report written on behalf of the World Health Organization’s Social Exclusion Knowledge Network, they described social exclusion as:

consist[ing] of dynamic, multi-dimensional processes driven by unequal power relationships interacting across four main dimensions—economic, political, social and cultural—and at different levels including individual, household, group, community, country and global levels, [and] result[ing] in a continuum of inclusion/exclusion

characterised by unequal access to resources, capabilities and rights ….88

I adopt the same understanding of social exclusion here.

86 Ibid. at 13.

87 “Social Inclusion/Exclusion and Health: Dancing the Dialectic” in Dennis Raphael, ed, Social Determinants of Health, 2d ed (Toronto: Canadian Scholars’ Press, 2009) 269 at 272.

88 Jennie Popay et al, Understanding and Tackling Social Exclusion: Final Report to the WHO Commission on Social Determinants of Health from the Social Exclusion Knowledge Network (WHO Social Exclusion Knowledge Network, 2008) at 2.

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As a relational process that engages multiple sites and dimensions, the precise mechanism that leads to each incident of exclusion varies. However, building on the work of Bruce Link and Jo Phelan, it is useful to conceptualize the operations of social exclusion in general terms as being propped up by power differences and unfolding through interconnected steps of labelling, stereotyping, separation, status loss, and discrimination.89 In a nutshell, social exclusion materializes when a set of individual differences come to be highlighted, ascribed negative connotations and used to classify people into members versus outsiders, with the latter being relegated to a lower rung of the social ladder and facing disadvantages respecting access to resources and opportunities. As Daniel Reidpath and his team explicated, social exclusion entails

… the application of the unarticulated and deeply embedded rules that govern to whom membership should be accorded – marking and separating, in crude terms, the ‘in- group’ from the ‘out-group’. Implicitly, it is about the assessment of social value, where in this context social value describes one’s worthiness for membership in the

community – i.e. whether one merits social investment.90

Power differential is said to underpin all aspects of this process as it influences which human attributes are singled out for greater scrutiny, how variations in these attributes get interpreted,

89 “Conceptualizing Stigma” (2001) 27:1 Annual Rev Sociology 363. Originally, the framework proposed by Link and Phelan was intended to explicate the process of stigmatization. However, there is much overlap between stigma and social exclusion as theoretical constructs. In his seminal work on the subject, Erving Goffman described stigma as relating to attributes and stereotypes that discredit people such that they are “reduced in our minds from a whole and usual person to a tainted, discounted one.” See Stigma: Notes on the Management of Spoiled Identity (Englewood Cliffs, N.J.: Prentice Hall, 1963) at 4. This notion of stigma as imposition of a spoiled identity dovetails with social exclusion, seeing as both refer to a process of othering. As pointed out by Taket et al, supra note 81 at 8, “no matter how social exclusion is conceptualized or defined, the notion often lends itself to the idea of deviance or non-conformity.” Kit Yee Chan, Mark Stoové and Daniel Reidpath underscored the conceptual overlap between stigma and social exclusion by referring to their relationship as follows: “stigma is the symbolic tagging of individuals or groups as sufficiently deviant from a social norm so as to legitimise their exclusion from community membership and social investment.” See “Stigma, Social Reciprocity and Exclusion of HIV/AIDS Patients with Illicit Drug Histories: A Study of Thai Nurses’ Attitudes” (2008) 5 Harm Reduction J 28 at para 1. In light of such theoretical interconnectedness, I contend that Link and Phelan’s model of stigmatization is equally applicable when used to describe the workings of social exclusion.

90 “‘He Hath the French Pox’: Stigma, Social Value and Social Exclusion” (2005) 27(4) Sociology Health & Illness 468 at 472.

148 where the lines between social groups are drawn, and which groups are to suffer from the depreciation of status and discrimination.91

Once these pieces of the social-exclusion puzzle are in place, they become mutually reinforcing and self-perpetuating. For instance, whereas negative labelling facilitates the exclusion of those who are held out to be different, the demarcation between us and them in turn smooths the way for more unfavourable labels to be imposed on those rendered as outsiders. Similarly, as discrimination weakens the social, economic, and political power of the excluded, it becomes ever more entrenched in society as those affected have less and less capacity to push back.

4.3.3 Prevailing Objections to Migrants’ Health Care Entitlement as Sustenance for and Outcome of Social Exclusion

Ever since social exclusion first entered the common parlance, many have found it a useful concept for articulating the disadvantage and rejection experienced by many migrants— particularly those who are racialized—in receiving countries. Over the years, numerous scholars have documented in detail the challenges facing migrants in seeking to fully integrate into the various aspects of their new home. For example, writing in the Canadian context, Grace-Edward Galabuzi described the vulnerability of racialized newcomers to be excluded from labour market participation, as evidenced by their higher unemployment rate and overrepresentation in lower wage positions, among others, relative to their Canadian-born counterparts.92 Relatedly, he observed an elevated poverty rate among racialized migrants, leading many to be homeless or living in “hypersegregated” neighbourhoods where housing standards fall short.93 This “racialized spatial concentration of poverty” is said to embody social exclusion in its physical sense and hinders migrants’ access to such support as “counselling services, life-skills training, child care, recreation, and health care,” causing them to become further alienated in other

91 Link & Phelan, supra note 89 at 375-376.

92 “Social Exclusion” in Dennis Raphael, ed, Social Determinants of Health, 2d ed (Toronto: Canadian Scholars’ Press, 2009) 252.

93 Ibid. at 261.

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domains of society.94 Similar economic, social, and geographical exclusion of migrants has been found in other receiving countries.95

Such social exclusion, I contend, serves as a helpful lens for understanding the precariousness of migrants’ health care entitlement in comparison with that of citizens. As Western receiving countries boast—or, in the case of the U.S., aspire toward—the achievement of “universal” health care,96 migrants’ ostracism from this enterprise literally signals their position outside the recognized “universe.” This us-them separation and the subjection of migrants qua the “other” to poorer treatment, as seen, is among the hallmarks of social exclusion understood as an outcome. Even more importantly, true to the self-fulfilling nature of social exclusion as a societal process, to the extent that migrants’ lesser public health care coverage risks compromising their health, their ability to engage in society through work, volunteerism, cultural activities, and so forth could become even more jeopardized, thus further cementing their marginalization in society.97 As migrants’ otherness from mainstream society comes to be accepted over time as a matter of fact, not only does it cause law- and policy-makers to deploy cost-saving and fraud-deterrence arguments in a way that targets migrants disproportionately, but it also normalizes such an instinct. Meanwhile, when cost- and fraud-related concerns are raised in relation to citizens’ health care coverage, the legal and political advantage that citizens enjoy relative to migrants in the social hierarchy generally allows them to more effectively push back against such pressure. This again reinforces the citizen-migrant health care disparities in Western receiving countries.

To suggest that social exclusion is a culprit of the uneven impact sustained by migrants in the face of cost-saving and fraud-deterrence rhetoric, however, is not the same as saying that citizens

94 Ibid. at 261-262.

95 See e.g., Jenny Phillimore & Lisa Goodson, “Problem of Opportunity? Asylum Seekers, Refugees, Employment and Social Exclusion in Deprived Urban Areas” (2006) 43 Urban Studies 1715; Andrew Butcher, Paul Spoonley & Andrew Trlin, Being Accepted: The Experience of Discrimination and Social Exclusion by Immigrants and Refugees in New Zealand (Palmerston North, NZ: Massy University New Settlers Programme, 2006).

96 See e.g., Jonathan Cylus & Irene Papanicolas, “An Analysis of Perceived Access to Health Care in Europe: How Universal is Universal Coverage?” (2015) 119:9 Health Policy 1133; Nandi et al, supra note 31.

97 See generally, Paula A Braveman et al, “Health Disparities and Health Equity: The Issue Is Justice” (2011) 101 American J Public Health S149 at S149-S150.

150 are immune from such exclusionary forces. Indeed, a sizable number of citizens also struggle with social exclusion due to their socioeconomic status, racialization, (dis)ability and the like, and as a result enduring health care precariousness of their own. To name but one recent example, since 2018, due to new policies that were billed in part as a cost-saving measure, low- income individuals living in some U.S. states now face the prospect of losing publicly-funded

Medicaid benefits if they fail to perform requisite hours of work-related activities.98 According to some theorists, experiencing social exclusion like this could accentuate marginalized citizens’ perception of migrants as a threat to their already-dwindling access to resources, thus fueling societal opposition to migrants’ health care entitlement.99 In other words, the fact that social exclusion bears on both citizens and migrants is not inconsistent with my theory that social exclusion lies at the heart of the unequal health care entitlement between citizens and migrants in Western receiving countries. Indeed, it may be that social exclusion of certain citizens helps perpetuate the exclusion of migrants.

As well, understanding migrants’ health care disentitlement as part and parcel of an entrenched system of social exclusion helps us make sense of the persistence of the cost-saving and fraud- deterrence rationales in spite of their evidentiary problems. To the extent that these rationales are critical to the construction of migrants as deviant others in the public imagination, their ongoing perpetuation in the migrant health care debate speaks more to their rhetorical utility than their empirical rigor. Specifically, arguments of cost saving and fraud deterrence lean on an assessment of moral desert to paint migrants as undeserving others, which paves the way for migrants’ lesser treatment relative to citizens.

Broadly speaking, deservingness conveys a sense of moral worthiness that an individual enjoys with respect to certain benefits or assistance. As Sarah Willen described in the context of

98 Anna L Goldman et al, “Analysis of Work Requirement Exemptions and Medicaid Spending” (2018) 178(11) JAMA Internal Medicine 1549.

99 See e.g., Peer Scheepers, Mérove Gijsberts & Marcel Coenders, “Ethnic Exclusionism in European Countries: Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat” (2001) 18 European Sociological Rev 17; Nikolaj Malchow-Møller et al, “Attitudes Towards Immigration: Perceived Consequences and Economic Self-interest” (2008) 100 Economic Letters 254. But see Jan Mewes & Steffen Mau, “Unraveling Working-Class Welfare Chauvinism” in Stefan Svallfors, ed, Contested Welfare States: Welfare Attitudes in Europe and Beyond (Stanford: Stanford University Press, 2012) 119.

151 undocumented migrants, being marked as undeserving of public health care coverage effectively amounts to being excluded “from the moral community of people whose lives, bodies, illnesses, and injuries are deemed worthy of attention, investment, or concern.”100 Studies of welfare entitlement in Western countries have consistently found self-responsibility one of the main criteria people use to evaluate deservingness. 101 That is, individuals whose need arises out of circumstances seemingly beyond their control are usually regarded as more deserving than those who may be blamed for their own plight. This “deservingness heuristic” is precisely what both the cost-saving and fraud-deterrence arguments make use of to rally against migrants’ health care entitlement.102 As seen, whereas the narrative of cost saving regularly relies on an undue portrayal of migrants as diseased bodies that impose a hefty burden on health care systems, concerns about immigration fraud present migrants as health tourists who exploit loopholes in immigration rules to meet their health needs. Either way, migrants are made to be freeloaders that thrust their own health care responsibility upon the receiving societies. This discursive frame reinforces the contrast between migrants and “us” as individuals who are burdening versus those who are self-reliant “active citizens.” At the same time, it spoils migrants’ moral character and legitimizes their status loss and unequal treatment, making it integral to the operation of social exclusion.

Viewed in this light, the function of cost-saving and fraud-deterrence claims are akin to other morally laden stereotypes employed by receiving societies to effectuate migrants’ social exclusion. For example, Reidpath et al. examined the operation of asylum seekers’ social exclusion in Australia.103 They observed the division of forced migrants by the country’s humanitarian program into refugees, whose need for protection is verified overseas and who are

100 “Migration, ‘Illegality,’ and Health: Mapping Embodied Vulnerability and Debating Health-Related Deservingness” (2012) 74 Soc Science & Medicine 805 at 806.

101 Wim van Oorschot, “Who Should Get What, and Why? On Deservingness Criteria and the Conditionality of Solidarity Among the Public” (2000) 28 Policy & Politics 33.

102 For a general discussion on deservingness heuristic, see Michael Bang Petersen et al, “Deservingness Versus Values in Public Opinion on Welfare: The Automaticity of the Deservingness Heuristic” (2010) 50 European J Political Research 24.

103 Supra note 90 at 480-482.

152 resettled by government, and asylum seekers, who enter Australia of their own accord and request for protection on arrival. Such contradistinction, they posited, invites stereotyping against asylum seekers as “illegal immigrants,” “queue jumpers,” “cheats” and “criminals”—namely, people that exploit acts of kindness from others. Once labelled as morally corrupt, asylum seekers are rendered unworthy of being members of the Australian society and the concomitant sharing of communal resources, including social and health care benefits. These observations echo the reflection of Natalie Grove and Anthony Zwi, who consider the treatment of forced migrants in several Western receiving countries.104 They noted that insofar as the movement of refugees challenges the settled boundaries and norms, “[d]eviance is conferred—they do what we don’t, they are what we are not, thus forcing choice between us or them, legal or illegal, genuine or bogus.”105 Consequently, social exclusion “not only creates distance between ‘us and them’, but also creates a sense of opposition and conflict, that leads inevitably to ‘us against them’.”106

In short, the cost-saving and fraud-deterrence narratives help facilitate the process of social exclusion against migrants. It does so by fuelling the image of migrants as people that are foreign and, more importantly, sinister, whose lack of self-responsibility threatens to overburden receiving societies’ health care systems and to undermine the integrity of immigration rules. It then draws on such stereotypes to implicate migrants’ undeservingness and to rationalize the narrower set of health care protection that migrants are given. As such, for those who stand to gain from preserving this exclusionary social order, continued propagation of cost-saving and fraud-deterrence arguments are crucial to their interest. The impulse to further such self-interest, I argue, provides a cogent explanation for the persistence of cost- and fraud-based objections to migrants’ health care entitlement in Western receiving countries in spite of their evidentiary shortcomings.

104 “Our Health and Theirs: Forced Migration, Othering, and Public Health” (2006) 62 Soc Science & Medicine 1931.

105 Ibid. at 1937 [emphasis original].

106 Ibid [emphasis original].

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4.4 Conclusion

In this chapter, I bring into question the empirical grounding of prevailing objections against providing equal health care entitlement to citizens and migrants. I show that according to decades of research, the contention that limiting migrants’ health care entitlement would save public expenditure and disincentivize immigration fraud is largely unproven. Moreover, I query why the same rationales for restricting migrants’ health care protection have generally not resulted in comparable denial of citizens’ health care coverage in Western receiving countries. Upon closer interrogation, I suggest that concerns about costs and fraud, although frequently presented as motivations for migrants’ health care disentitlement, are more appropriately understood as contributing to a system of social exclusion facing migrants in receiving countries. And it is this broader exclusionary structure that actually sustains the unequal health care entitlement between citizens and migrants. Propelled by the power imbalance between citizens and migrants, the processes of social exclusion employ the narratives of costs and fraud to label, stereotype, and differentiate migrants as burdening and exploitative, and therefore morally suspect. Refracted through this lens of deservingness, an us-them dynamic between citizens and migrants thus comes to being, which dictates the need to prioritize citizens over migrants in receiving countries’ health care resource allocation.

Once the prevailing opposition to migrants’ equal health care entitlement is properly located within the system of social exclusion, its defensibility arguably demands an inquiry into the fairness and legitimacy of the dichotomy between citizens and migrants as “us” versus “them.” Specifically, does Western receiving countries’ blanket characterization of migrants as outsiders in the domain of health care accord with the principles of justice that they subscribe to? And if the demarcation of “us” indeed must be expanded to include at least some migrants in the name of fairness, can we reasonably expect citizens of Western liberal democracies to accept this new norm? I will turn to these questions in the upcoming chapter.

Chapter 5 Constituting Members: Equal Health Care Entitlement for Ordinarily Resident Migrants 5.1 Introduction

The suggestion that citizens ought to enjoy priority in a society’s distribution of health care resources—which, as I have demonstrated, undergirds the prevailing opposition to equal health care entitlement between international migrants and citizens in Western receiving countries— rests on two contentions. First, it maintains that membership in a community is germane to the said community’s allocation of health care resources. Second, it holds that communal membership for the purpose of health care entitlement is defined by citizenship. In the present chapter, I subject these two claims to closer examination and conclude that while the first of these propositions agrees with the norms underpinning contemporary health care institutions, the second is at odds with the liberal democratic ethos permeating Western receiving societies. In short, I find the citizen-priority thesis wanting for championing “solidarity without inclusion,” to borrow Will Kymlicka’s words.1 I posit that so long as the responsibility of realizing individuals’ right to health care remains largely borne by national and subnational governments, membership—defined as a state of belonging to a collectivity—in relevant political communities is indeed one of the key determinants of a person’s health care entitlement. Nevertheless, to the degree that citizenship as a legal status primarily reflects the circumstances surrounding a person’s birth, I argue that it is an inadequate marker of membership. In comparison, ordinary residence better encapsulates the communal affiliation, identification, participation, and subjugation that typically indicates membership. It is therefore fairer to employ ordinary resident status as the benchmark for delineating one’s health care entitlement.

Nevertheless, the membership-based claim that I am advancing here comes with some qualifications. First, while I think it should be our primary concern, I do not hold membership to be the only concern apposite to our demarcation of a receiving society’s health care duties. Nor

1 “Solidarity in Diverse Societies: Beyond Neoliberal Multiculturalism and Welfare Chauvinism” (2015) 17 Comparative Migration Studies 3 at 7.

154 155 do I maintain that Western receiving countries have no moral obligations at all to furnish non- member migrants with health care. As I will elaborate in the next chapter, migrants’ entitlement to certain health care goods or services may also be founded on receiving states’ causal and/or moral responsibility as well as remedial capacity. Based on these considerations, I argue that a state is required to assure the access of every migrant present in its territory, irrespective of their membership status, to a basic set of health care, including primary care and treatment that cannot be delayed. The relevance of membership to health care entitlement, instead, arises when a society aims to secure for its population a level of health care protection beyond this bare minimum. It is with respect to health care of this nature that I argue international migrants who are not ordinarily resident in receiving countries, or whose ordinary residence therein cannot be somewhat accurately predicted, may justifiably be denied public coverage on par to what citizens enjoy.

The contention that ordinarily resident migrants, as a result of their membership status, should be entitled to health care “on par to what citizens enjoy” implies that the precise level of these migrants’ health care coverage could vary from one society to another, depending on the rights ascribed to citizens. What this makes clear is that the membership argument proposed here is not a freestanding theory of a right to health care. Rather, it is a claim for equal treatment between everyone that constitutes member of a society. Taking to extremes, this membership-based analysis supposes that if a receiving society attaches no significance to health care entitlement, citizens and ordinarily resident migrants alike would find themselves without health care protection other than the bare minimum that ought to be made universally available on the account of causal responsibility and remedial capacity. As Jennifer Prah Ruger warned, the communitarian worldview that underlies such a membership-based approach “take[s] community norms or values as [its] absolute principles, and health might or might not be included as a special good, depending upon the community’s shared values.”2 However, I do not adopt this agnostic posture here. The membership argument that I put forth is premised on a normative account that demands societies’ assurance of an adequate level of health care for its populace. As

2 “Toward a Theory of a Right to Health: capability and Incompletely Theorized Agreements” (2006) 18 Yale JL & Human 273 at 282.

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I stressed in Chapter 1, I take unmet health care needs to be prima facie unhumanitarian and unjust in light of the human suffering they cause, as well as the threats they pose to fair equality of opportunity, human flourishing, and life, property, and freedom. To the extent that market- based distribution of health care resources is vulnerable to being inefficient and inequitable, public interventions are morally required to ensure people’s access to adequate health care. Accordingly, taking my cue from T.H. Marshall, I suggest that health care as a form of social rights ought to be constitutive of what it means to be a full-fledged member in modern society.3

But what is the appropriate level of health care protection that should come with societal membership? I admit that I have no ready answer to this question. However, it seems evident that a society would be acting unjustly if it fails to ensure members’ entitlement to at least some health care beyond the universally required minimum—i.e. primary care and treatment that cannot be delayed—for it falls well short of sufficiently attending to the range of illnesses and disabilities that may compromise equal opportunity, human capacity, and/or life, property, and freedom. For instance, to the extent that such a minimum level of health care entitlement leaves out much of the specialist care needed to manage non-communicable diseases outside emergency situations, attaching no additional health care protection to membership would fail to properly attend to health conditions like cancer and severe forms of cardiovascular diseases, which constitute some of the leading causes of morbidity and mortality around the world.4 This worry is consonant with the fact that nearly all Western liberal democracies today boast some national schemes that facilitate their citizens’ access to a range of health care beyond what I suggest must be made available to societal members and territorially-present migrants alike.5 Even in the U.S., where access to health care for many people has long been considered wanting, public insurance for health care beyond the minimum that I prescribe is available to some segments of the population through programs like Medicaid, which targets the poor, and Medicare, which covers

3 “Citizenship and Social Class” in T.H. Marshall, ed, Citizenship and Social Class and Other Essays (London, Cambridge University Press, 1950) 1.

4 Samira Humaira Habib & Soma Saha, “Burden of Non-Communicable Disease: Global Overview” (2010) 4:1 Diabetes & Metabolic Syndrome 41 at 44.

5 For a summary of some of these health care programs, see e.g. Colleen M Flood & Aeyal Gross, eds, The Right to Health at the Public/Private Divide: A Global Comparative Study (New York: Cambridge University Press, 2014).

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the elderly and people with certain disabilities.6 In recent years, notwithstanding attempts by the Trump administration to reverse course, the U.S. health care policy has further converged toward the international trend with the passage of the Patient Protection and Affordable Care Act in

2010, which significantly reduces the number of Americans that are medically uninsured.7 Thus, from both normative and empirical perspectives, health care entitlement that is more than the minimum is broadly accepted as part and parcel of membership in Western societies.

Moving past this general agreement, however, notable discord exists regarding the precise scope of health care protection that must be afforded by societies to their members. Myriad views on the appropriate contour of such health care entitlement have been proffered, reflecting varying conceptions of justice, as well as each society’s state of technological advancement, needs and resources at a given time.8 As a case in point, Daniel Hausman suggested that the set of health care that must be made accessible to societal members is narrower if the rationale for doing so is to protect life, property, and freedom than if the motivation is to safeguard fair equality of opportunity.9 He noted that “there are many pathologies that limit people’s shares of the normal opportunity range without threatening either their lives or their freedom (in the sense of self- determination and independence). Consider, for example, infertility, impotence, mild myopia, neurosis, or moderate back pain.”10 In light of such difficulty with coming to a substantive consensus, Norman Daniels has proposed that decision-makers strive instead to settle on a fair process for resolving disagreements over what should be included in the health care basket.11

It is not my intention to wade into this protracted debate about the specific content of the right to health care here. Aside from the general proposition that members of Western liberal

6 Nancy De Lew, “The First 30 Years of Medicare and Medicaid” (1995) 274:3 JAMA 262.

7 Thomas Rice et al, “Universal Coverage Reforms in the USA: From Obamacare Through Trump” (2018) 122:7 Health Policy 698.

8 See generally, Colleen M Flood, “Conclusion” in Colleen M Flood, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: University of Toronto Press, 2006) 449.

9 “A Lockean Argument for Universal Access to Health Care” (2011) 28 Soc Philosophy & Policy 166 at 179.

10 Ibid.

11 “Justice, Health, and Healthcare” (2001) 1:2 American J Bioethics 2.

158 democracies should be entitled to at least some health care coverage beyond primary care and undeferrable treatment, my focus in this chapter will be on who, as opposed to what, ought to be covered under Western receiving countries’ public health care programs. Accordingly, unless otherwise specified, my reference in the rest of this chapter to health care entitlement should be taken as concerning medical interventions that are over and above the universally required minimum.

With this general contour of my analysis in mind, I will now proceed to examine migrants’ membership in Western receiving societies and the consequences it bears on migrants’ health care entitlement. I begin with Section 5.2 where I sketch out the significance of societal membership in the determination of health care entitlement. I argue that membership in this context performs double duty. Internally, it generates a sense of solidarity needed to spur and sustain health care resource allocation, whereas outwardly, it helps inform the boundaries of a receiving state’s health care duty. Next, in Section 5.3, I take a closer look at the constitutive elements of societal membership. I first consider what underlying interests that citizenship— typically used as a legal designation of societal membership—intends to recognize and protect. These interests, I argue, make up the prevailing conception of societal membership in Western liberal democracies. I then apply this account of societal membership to the delineation of migrants’ health care entitlement. I propose that all migrants who, as a matter of fact as opposed to legal classification, are ordinarily resident in a Western receiving country or whose establishment of ordinary residence therein can be reasonably expected, should be treated as members and therefore afforded the same degree of health care protection given to citizens. In failing to do so, I submit in Section 5.4 that Western receiving countries are acting in breach of the principles of equality and reciprocity, both of which are basic tenets of liberal democratic philosophies. I then wrap up this chapter with some concluding remarks in Section 5.5.

5.2 The Importance of Membership in Determining Health Care Entitlement

Government efforts to bring about health care coverage for its population typically entails certain disruption of market-based exchanges such that health care resources could be reallocated in favour of those in need. A level of self-sacrifice is therefore demanded from those in society who are healthier and financially better off, as well as those who would stand to gain if health care

159 were to be freely traded. For example, in countries whose universal health care is financed through social insurance schemes, qualified individuals are compelled to pay into the system even when they may prefer to opt out, and their employers are routinely required to cover at least a portion of the premiums.12 Where universal coverage is achieved through compulsory private insurance, there are strict rules governing how premiums are calculated by insurance companies, as well as prohibitions against coverage denial or policy cancelation due to illness.13 In jurisdictions where public and private health care coexist, the type of services that could be provided by the private sector is frequently restricted. Likewise, aspects of health care professionals’ practices are often subject to stringent regulations, including, inter alia, the terms of their remuneration and whether they are permitted to work in both public and private health care systems.14 In liberal democratic societies, such governmental constraint on personal liberty must be rationally supported in order to be considered just and to command public consent. As Arash Abizadeh noted, “both liberalism and democratic theory share the view that coercive state practices … must either be eliminated, or receive a justification consistent with the ideal of autonomy.”15

In part, government-mediated redistribution of health care resources derives its justification from its objectives. As seen, a main goal of such government interventions is to make medical treatment accessible on the basis of need rather than the ability to pay, thus ensuring the deleterious consequences of infirmity would be more equitably distributed in society.16 This egalitarian rationale, in turn, has been tied to various accounts of justice, including the protection of equal opportunity, human capability, as well as the right to life, property, and self-

12 See e.g. Ewout van Ginneken & Thomas Rice, “Enforcing Enrollment in Health Insurance Exchanges: Evidence from the Netherlands, Switzerland, and Germany” (2015) 72:4 Medical Care Research & Rev 496.

13 See e.g. Bradford L Kirkman-Liff, “Health Insurance Values and Implementation in the Netherlands and the Federal Republic of Germany” (1991) 265:19 JAMA 2496.

14 See e.g. Commitment to the Future of Medicare Act, 2004, SO 2004, c 5.

15 “Democratic Theory and Border Coercion: No Right to Unilaterally Control your Own Borders” (2008) 36:1 Political Theory 37 at 40 [Abizadeh, “Border Coercion”].

16 David A Watkins et al, “Universal Health Coverage and Essential Packages of Care” in Dean T Jamison et al, eds, Disease Control Priorities, 3rd ed, vol 9 (Washington, DC: World Bank, 2017) 43 at 43.

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determination.17 In this chapter, however, my focus is on a different justification requirement. I argue that, besides being congruent with prevailing notions of justice, government efforts to redistribute resources in a broad-based, recurrent manner as demanded by national health care programs must be grounded in a web of interpersonal relationships that are amenable to such redistributive dynamic. That is, in order for a redistributive arrangement to be normatively defensible, those who are compelled to share their resources must be convinced that they not only have good reasons to do so, but also good reasons to do so for the benefit of those who will receive these resources.

David Miller explained the need for this relational justification as follows: “We can only expect [people] to consent to institutions that enforce the preferred distribution if they regard themselves as bound to the beneficiaries by strong ties of community: the stronger the ties, the more egalitarian the distribution can be.”18 In other words, even if it is accepted that health care equity is a worthy normative pursuit and that government-mandated redistribution is necessary for its attainment, such a redistributive arrangement will remain illegitimate if foisted on people who are unrelated to one another. Miller illustrated his point by contemplating what redistributive justice would demand in an imagined world made up of self-reliant individuals that are socially isolated from one another. He suggested that the principle of non-interference ought to triumph in this context, given that everyone has a right to property she or he lawfully amasses.19 The fact that some people may turn out to be better endowed and have the capacity to improve the circumstances of others ought not in and of itself impose a responsibility on them to do so. Referring to the proverbial grasshopper that sang all summer long while the ant gathered food in preparation for the winter, Miller opined that, short of an extraordinary circumstance, the ant has minimal duty to come to the aid of the grasshopper that is now famished.20 Outside a truly

17 See nn 34-36 in Chapter 1 and the accompanying text.

18 “In What Sense Must Socialism Be Communitarian?” (1989) 6:2 Social Philosophy & Policy 51 at 59 [Miller, “Socialism”].

19 Ibid at 58-59.

20 “Distributing Responsibilities” (2001) 9 J. Political Philosophy 453 at 461 [Miller, “Distributing Responsibilities”].

161 emergency context or unless the ant somehow causes the plight of the grasshopper, any departure from this rule of non-interference can only be justifiable if a certain social bond exists between the two that motivates the ant to act beyond self-interest. For example, they may share an insectival identity that gives rise to a sense of camaraderie and inspires them to help each other. Or, they may have chosen to enter into a symbiotic relationship where the grasshopper masters its craft of singing while the ant concentrates on the food gathering, thus co-creating a community that provides all its members with nourishment for both body and soul. Thus, governments that “aim to be welfare states and at the same time to win democratic legitimation,” said Miller, “must be rooted in communities whose members recognize [the] obligation of justice to one another.”21

Michael Walzer, too, has stressed the need for sustained redistribution of resources to be founded on some form of communal structure that is more muscular than a mere aggregate of independent persons. He argues that “[t]he idea of distributive justice presupposes a bounded world within which distributions takes place: a group of people committed to dividing, exchanging, and sharing social goods, first of all among themselves.”22 Correspondingly, in his view, the duty of care owed by complete strangers to one another is highly circumscribed by what he terms the principle of mutual aid:

It is the absence of any cooperative arrangements that sets the context for mutual aid: two strangers meet at sea or in the desert or, as in the Good Samaritan story, by the side of the road. … [W]e commonly say of such cases that positive assistance is required if (1) it is needed or urgently needed by one of the parties; and (2) if the risks and costs of giving it are relatively low for the other party. … But the limit on risks and costs in these cases is sharply drawn. I need not take the injured stranger into my home, except briefly, and I certainly need not care for him or even associate

21 On Nationality (New York: Oxford University Press, 1995) at 93.

22 Spheres of Justice: A Defence of Pluralism and Equality (New York: Basic Books, 1983) at 31.

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with him for the rest of my life. My life cannot be shaped and determined by such

chance encounters.23

As such, like Miller, Walzer believed that the level of redistribution that can justifiably occur among a group of individuals with no attachment to one another is rather basic. In relation to health care, this suggests that any prolonged redistribution of resources beyond what is required to address urgent medical needs raises concerns about illegitimacy, unless it takes place against a backdrop of intimate human connections and exchanges that prompt people’s acceptance of extended responsibility toward one another.

In a world where allocation of health care resources relies predominantly on national and subnational institutions and structures, the special interpersonal relationship spoken of by Miller and Walzer is encapsulated by membership in these national or subnational political communities. Such societal membership, according to Rogers Brubaker, is “internally inclusive” and “externally exclusive.”24 It functions as the glue that binds all members of the political community together with a promise of equality, as well as a fence that keeps non-members out. Although this “hard-on-the-outside, soft-on-the-inside” notion of societal membership has been criticized for being an oversimplified account of reality,25 the capacity of membership to simultaneously include and exclude is seldom challenged. Accordingly, I suggest that societal membership pertains to health care resource reallocation in at least two ways. On the one hand, the inclusive facet of membership nurtures solidarity, namely a sense of togetherness that motivates people to value the interests of their fellow members as those of their own, thus agreeing to come to the aid of one another in time of need. On the other hand, by juxtaposing members with others, membership brings to light the edges of solidaristic relationships and helps delimit the scope of redistributive obligations that people have toward one another and the correlative rights.

23 Ibid at 33.

24 Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992) at 21.

25 See e.g., Linda Bosniak, “Ethical Territoriality and the Rights of Immigrants” (2008) 1 Amsterdam L Forum 1 [Bosniak, “Ethical Territoriality”].

163

In the ensuing subsections, I will explore these two allocative functions of societal membership in turn. Before doing so, however, I wish to stress that both of the relationships between societal membership and health care entitlement that I outline below are mediated by social solidarity. At bottom, it is the solidarity shared among members of a polity that sustains and delimits one’s entitlement to health care qua communal provision. Societal membership factors into the calculus of health care entitlement by virtue of being an important source as well as an empirically discernable marker of social solidarity. In other words, societal membership helps give rise to social solidarity, and social solidarity is reflected in societal membership. The two concepts are mutually defining. Thus, seeing as solidarity furnishes the communal provision of health care with the requisite relational legitimacy, membership, betokening the presence and reach of solidarity, sets out the appropriate scope of health care entitlement in a society.

5.2.1 Societal Membership and Solidarity

Generally speaking, solidarity denotes a state of “non-calculating co-operation based on identification with a common cause” among constituents of a community.26 It embodies both a feeling and a property in the sense that it conveys a sentiment of togetherness as well as an active commitment by individuals to working for the common good.27 As I have alluded to above when pondering the redistributive responsibility between the grasshopper and the ant, solidarity tends to arise from associations among either people of a shared identity or individuals that engage in a joint venture. Émile Durkheim referred to solidaristic ties developed from these two forms of relationships as mechanical and organic solidarity respectively.28 Although he originally associated mechanical and organic solidarities with “traditional” and “modern” societies respectively, but subsequent theorists have suggested that these two forms of solidarity are better conceived as different facets of solidarity in all communities.29 Concerning the former,

26 Rob Houtepen & Ruud ter Meulen, “New Types of Solidarity in the European Welfare State” (2000) 8 Health Care Analysis 329 at 334.

27 Richard E Ashcroft, Alastair V Campbell & Susan Jones, “Solidarity, Society and the Welfare State in the United Kingdom” (2000) 8 Health Care Analysis 377 at 377-378.

28 The Division of Labor in Society, trans. by George Simpson (New York: Free Press, 1933) at 130-131.

29 See e.g., Talcott Parsons, “Durkheim’s Contribution to the Theory of Integration of Social Systems” in Kurt H. Wolff, ed, Emile Durkheim, 1858-1917 (Columbus: Ohio State University Press, 1960) 118; Craig Calhoun,

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Durkheim characterized it as mechanical because it links individuals directly with a community in much the same way that components of an inanimate object are often joined. As people that are alike in terms of ethnicity, cultural beliefs, and so forth seek out one another’s company, a collective conscience emerges out of their commonality, which in turn binds individuals further by shaping their psyches to ever more coincide with the collective identity.30 In contrast, organic solidarity is most salient in an environment of interpersonal diversity as it rallies disparate persons behind a joint project through the division of labour. It therefore resembles the physiology of complex organisms whose distinct body parts depend on and collaborate with one another to carry out the vital tasks of everyday life.31 Solidarity of this type echoes John Rawls’s conception of society as a social union in which individuals with complementary abilities combine forces to maximize their cumulative potentialities.32 But while individuals may well stand to profit from their cooperation, the impetus for organic solidarity lies not in the self- interested wish to trade short-term sacrifice for long-term benefits. Rather, organic solidarity is anchored by an element of altruism that moves it beyond an instrument of personal gain. As Rawls explained, what truly characterizes a solidaristic social union is the pursuit of “shared final ends and common activities [that are] valued for themselves.”33 Much like in cases of game playing, irrespective of individual victories and losses, valences are regularly formed between the players as they partake in the mutually constructed experience and work collectively to secure the conditions of fair play.

In theory, solidaristic ties can be formed in communities of all scales, ranging from families to polities to the entire humanity.34 Whichever form it takes, by prompting individuals within its

“Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere” (2002) 14:1 Public Culture 147 at 160.

30 Durkheim, supra note 28 at 105-106.

31 Ibid. at 130-131.

32 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 522-523.

33 Ibid. at 525.

34 David Miller, “Solidarity and Its Sources” in Keith Banting & Will Kymlicka, eds, The Strains of Commitment: The Political Sources of Solidarity in Diverse Societies (Oxford: Oxford University Press, 2017) 61 at 63 [Miller, “Solidarity”].

165 ambit to forgo their immediate advantage for the sake of meeting the needs of others, solidarity is long considered integral to the sustenance of ongoing health care resource redistribution.35 As Andreas Reis observed, solidarity “is a key underlying notion of many healthcare and social systems throughout the world and provides the moral basis for financing mechanisms such as redistribution and pooling of funds, as well as progressive revenue raising.”36 In today’s world where assurance of health care coverage depends heavily on national and subnational mechanisms, solidarity in these political communities, which Durkheim termed “social solidarity,”37 is especially critical to the moral defensibility of health care systems. For instance, the right of everyone to access preventive care and medical treatment guaranteed in the Charter of Fundamental Rights of the European Union is listed under the chapter titled “Solidarity.”38 In Germany, individuals enrolled in the statutory health insurance scheme are, by law, described as forming a “solidarity community.”39 Similarly, in Canada, since 2006 the federal government’s annual reports to Parliament on how provincial health insurance programs are meeting the legislated operational standards have consistently identified solidarity as a fundamental value of the health care system.40

Specifically, social solidarity facilitates health care resource redistribution in both horizontal and vertical fashions. As it nurtures the spirit of mutuality, social solidarity weaves together the general population horizontally, and in so doing, it enables risk-pooling and the transfer of resources between the times of relatively good health and the times of need in the usual course of life. It also binds the society vertically across social strata by fostering an inclusive ethos that drives the redistribution of resources between the affluent and the poor, as well as the able-

35 Richard B Saltman, “Health Sector Solidarity: A Core European Value but With Broadly Varying Content” (2015) 4 Israel J Health Policy Research 5; Lawrence D Brown & David P Chinitz, “Saltman on Solidarity” (2015) 4 Israel J Health Policy Research 27.

36 “Universal Health Coverage: The Critical Importance of Global Solidarity and Good Governance” (2016) 5:9 Intl J Health Policy & Management 557 at 557.

37 Supra note 28.

38 EC, Charter of Fundamental Rights of the European Union, [2012] OJ, C 326/02, art. 35.

39 Art 1 Code of Social Law (Germany).

40 Health Canada, Canada Health Act Annual Report 2005-2006 (Ottawa: Health Canada, 2006) at 1.

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bodied and those living with disabilities.41 By making redistribution in both directions possible, social solidarity supplies contemporary health care arrangements with the requisite relational legitimacy. Moreover, social solidarity ensures that when health care is indeed provided to those in need, this could be done through processes that are in conformity with human dignity. As Ruud ter Meulen cautioned, “[t]hough care for individuals may be just from the perspective of distributive justice, it can still be indecent, because of the humiliating way this care is provided.”42 Solidarity guards against this indignity by steering the rationale for resource redistribution away from pure self-interest and toward a sense of mutual respect and compassion.43 Or, to borrow the terms used by Michał Zabdyr-Jamróz, solidarity inspires people’s willingness to come to the aid of one another not out of the “expectation of future benefits” but “genuine empathy.”44 Thus, social solidarity lays the relational groundwork for health care systems to be both justified and decent, and as such it contributes to these systems’ acceptability in the minds of those subject to their coercive elements.

Membership in relevant political communities plays an instrumental role in generating the social solidarity needed to support broad-based resource redistribution at a (sub-)national level. In his influential work on the subject, T.H. Marshall described citizenship—which, as I will explicate below, is frequently used as a stand-in for societal membership—as “an important ingredient in an integrating process,” as it draws on “a direct sense of community membership based on loyalty to a civilisation which is a common possession.”45 Michael Walzer similarly characterized societal members as occupying “a world of common meanings,” in which sensibilities and intuitions come to be shared.46 What both Marshall and Walzer underscored is

41 Peter Taylor-Gooby, Reframing Social Citizenship (New York: Oxford University Press, 2009) at 7-9.

42 “Solidarity and Justice in Health Care. A Critical Analysis of Their Relationship” (2015) 43 Diametros 1 at 14.

43 Ibid.

44 “The Veil of Ignorance and Solidarity in Healthcare: Finding Compassion in the Original Position” (2015) 43 Diametros 79 at 80.

45 Marshall, supra note 3 at 40-41.

46 Walzer, supra note 22 at 28.

167 the potentiality for fellow feeling to emerge between members of a polity as a result of their belonging to a shared community.

Specifically, two aspects of members’ “belonging together” are pertinent to social integration: an identity held by members as equals, and social exchanges among members when pursuing a collective goal, including the attainment of the very equality enjoyed by them.47 In regards to the former, Marshallian theory maintains that societal members as a result of their status enjoy “a kind of basic human equality.”48 That is, societal members “are—from the point of view of the duties and rights of their membership—putatively equal. Ostensibly, they deserve equal respect and recognition and are fully qualified to contribute to the commonwealth.”49 This standing as coequals accentuates societal members’ commonality. And as members’ perception of self and the world becomes ever more refracted through the perspective of the collective, solidarity starts to develop among them. At the same time, a sense of togetherness also grows among members as they interact with one another in their communal lives. Take as an example societal members’ joint efforts to attain rights as coequals, Marshall posited that an interpersonal bond “is stimulated both by the struggle to win those [membership] rights and by their enjoyment when won.”50 A collective consciousness, therefore, may be forged between members around their social cooperation to bring about rights and freedoms, as well as their shared experiences in exercising and reinforcing such rights and freedoms in their day-to-day exchanges.

The two processes identified by Marshall concerning how societal membership bears on social integration coincide with Durkheim’s two-fold conception of solidarity. Giuseppe Sciortino elaborated on this coincidence as follows: “Mechanical solidarity refers to diffuse networks of solidarity and categories of belonging, where membership is contingent upon what the actor is assumed ‘to be’. By contrast, organic solidarity refers to specific or performance-related

47 John Crowley, “The National Dimension of Citizenship in T.H. Marshall” (1998) 2 Citizenship Studies 165 at 174.

48 Marshall, supra note 3 at 8.

49 Giuseppe Sciortino, “‘A Single Societal Community with Full Citizenship for All’: Talcott Parsons, Citizenship and Modern Society” 10:3 J Classical Sociology 239 at 249.

50 Supra note 3 at 41.

168 networks, with membership contingent upon the sharing of specific interests, values, competencies and tastes.”51 Implied in Sciortino’s comment is a recognition that membership in a polity undergirds both mechanical and organic solidarity. Whereas equal status and a shared way of life among members conjure up a sense of commonality needed to animate mechanical solidarity, the experiences of members collaborating with one another in pursuit of social advancements lay a fertile ground for organic solidarity to develop. And as this solidarity permeates the appropriate (sub-)national communities, it provides the necessary relational anchor for the sustained resource redistribution entailed by modern universal health care schemes.

5.2.2 Societal Membership and Boundary Setting

As much as solidaristic relationships rationalize and sustain government-directed redistribution of health care resources, they also limit the extent of such redistribution. Given that social solidarity supplies contemporary redistributive arrangements with the necessary relational justification, any demand to engage in health care redistribution that either overshoots or falls short of the reach of such solidarity is morally suspect. On one hand, health systems that require individuals to share resources on an ongoing basis with people whom they experience no social solidarity with are vulnerable to opposition that asks: what is in it for me? To insist on this redistributive burden without the matching social relationships, as David Miller cautioned, will likely be politically infeasible as it “will lose contact entirely with the beliefs of the people that

[it] seek[s] to address.”52 I refer to this as an illegitimacy problem. On the other hand, when government-mandated health care redistribution fails to encompass everyone that is united by a solidaristic bond, problems of injustice arise. Such under-inclusion, as I shall elaborate below, treats similarly situated people differently and denies the fruits of labour to some participants in social cooperation. Thus, the requirement of justice and legitimacy dictates that the scope of health care resource redistribution in a society—and by extension, the determination of who should be granted health care entitlement—must closely map onto the existing sphere of social

51 Supra note 49 at 242.

52 “In Defence of Nationality” (1993) 10 J Applies Philosophy 3 at 14.

169 solidarity. Only people who are linked by the same solidarity should have a valid claim for equal health care coverage.

The reliance on the presence of solidaristic bonds as a marker for health care entitlement, however, runs up against notable empirical challenges. Solidarity, being an abstract and multidimensional social force, is not readily discernible, nor can it be measured by gauging individuals’ attitudes and behaviours alone, which would miss important collective aspects of the concept.53 As Durkheim acknowledged, “solidarity is a completely moral phenomenon which, taken by itself, does not lend itself to exact observation nor indeed to measurement.”54 Such imperceptibility complicates attempts to specify the state of social solidarity, including the delineation of its span. To overcome this empirical problem, Durkheim contended that the study of solidarity must lean on “an external index which symbolizes it.”55 In other words, analysis of social solidarity must be achieved indirectly, via the examination of related indicators.

One of the commonly used “external indices” of social solidarity, particularly for demarcating its outer boundaries, has been membership in relevant societies. For instance, when stressing the bounded nature of the concept, Keith Banting and Will Kymlicka described social solidarity as “rooted in an ethic of membership,” which encapsulates “the mutual concern and obligation we have as members of a society.”56 This resort to membership for the purpose of determining the perimeters of solidarity stems from the fact that, in addition to being a pivotal catalyst, membership constitutes a precondition for solidarity to arise. As Miller noted, “for a group of people to be united by relations of solidarity … there has to be a sufficiently precise, and shared, sense that they are a group.”57 That is, the development of solidaristic bonds—whether by coalescing around certain commonalities as in the case of mechanical solidarity, or by engaging

53 See generally, Phil Johnson et al, “Legal Origin and Social Solidarity: The Continued Relevance of Durkheim to Comparative Institutional Analysis” (2017) 51 Sociology 646; Martha W Carithers, “Conceptualization and Analytic Unit in Durkheim” (1977) 2 Mid-American Rev Sociology 71.

54 Supra note 28 at 64.

55 Ibid.

56 “Introduction” in Banting & Kymlicka, supra note 34, 1 at 6.

57 “Solidarity”, supra note 34 at 63.

170 in social cooperation as called for by organic solidarity—necessitates a body of people to begin with, who see themselves as interconnected rather than a mere aggregate of isolated individuals. Specifically, this group of people must identify themselves with some common features, or they must be prepared to collaborate with one another. As Miller put it, “there must … be a ‘we’ that feels and practises solidarity.”58 Without such a “we,” there can be no interpersonal relationships to speak of, let alone solidarity. Concomitantly, any solidarity cultivated on the basis of this “we” can only extend as far as the human association that exists within this collectivity.

In fact, to a large extent, membership and solidarity are coterminous and their borders are mutually reinforcing. At the same time as social solidarity draws on, and therefore is inherently constrained by, the ties between societal members, it transfigures these membership ties by prompting a set of reciprocal obligations, including resource redistribution, thus accentuating the divide between members and others. Another way of saying this is that whereas membership sets the stage for solidarity, solidarity gives meaning to membership and helps sharpen its edges. Walzer summarized this relationship as follows:

Membership is important because of what the members of a political community owe to one another and to no one else, or to no one else in the same degree. And the first thing they owe is the communal provision of security and welfare. This claim might be reversed: communal provision is important because it teaches us the value of membership. … Mutual provision breeds mutuality. So the common life is

simultaneously the prerequisite of provision and one of its products.59

This interdependent and mutually referential relationship between societal membership and social solidarity implies that the margins of these two concepts overlap substantially: members are those who share solidaristic bonds, and solidarity is the state of members belonging together. It follows that, since the scope of health care resource redistribution in a just society ought to

58 Ibid.

59 Supra note 22 at 64-65.

171 match that of social solidarity, membership can also be used for the same purpose as an appropriate marker for who should be entitled to health care benefits in a given society.

Simply put, the redistribution of health care resources in Western liberal democracies as a form of communal provision ought to encompass all societal members. In the remainder of this chapter, I shall build on this premise to argue that any migrants who can rightly be considered members of a Western receiving country must be entitled to health care coverage akin to citizens of that country. An extension of my argument is that if a society wishes to bestow health care entitlement on a wider group of people, it must start by fostering a sense of togetherness between these individuals and current members so as to broaden the pre-existing perception of membership. To do otherwise renders the health care redistribution prima facie illegitimate. Some theorists, however, have defended the imposition of certain desired distributive arrangements without the accompanied social solidarity on the ground that solidarity will naturally grow out of communal provision. That is, individuals who are made to be part of a society’s redistributive process, even if they lack any prior relationships, will over time come to see each other as members and the resource redistribution among them as acceptable. This, in my view, is a mistaken understanding of the mutuality between membership and solidarity. I agree with Miller when he said:

No doubt there is a process of reinforcement such that implementing a practice of distributive justice appropriate to a particular community will tend to buttress the sense of community that already exists. But if, starting from [individuals who had no social relations with one another], an external agency were to impose an egalitarian redistribution of assets but do nothing else to change relationships between these [otherwise unrelated individuals], I can see no reason to expect that they will begin to think of themselves as forming a community or to regard the redistribution as

legitimate.60

60 “Socialism,” supra note 18 at 60 [emphasis added].

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In other words, the idea that solidarity and membership can be nurtured by way of communal provision such as health care rests on the presence of a solidaristic community to begin with. Communal provision per se functions as a catalyst rather than a source of the positive feedback between membership and solidarity. As solidarity is required for health care resource redistribution to be legitimate, membership must also precede health care entitlement if such entitlement is to be acceptable.

5.3 Theorizing Societal Membership

Having clarified the significance of societal membership in the delineation of health care entitlement, I now attend to the questions of what it means when we consider people to be members of a particular society and the extent to which international migrants qualify as such members. In the broadest sense, societal membership conveys the state of belonging to either a national or a subnational community in which sustained redistribution of health care resources takes place. What constitutes this societal belonging, however, has been an ongoing debate.61 For some, belonging is established only when people obtain a certain legal status in society, most often the status of a citizen, which is said to embody the necessary degree of social attachment demanded by membership. For others, physical presence in a society sufficiently indicates one’s belonging. Pursuant to this view, “once someone is in the geographical territory of the state, that person must, for most purposes, be treated as fully in.”62 In Western liberal societies where non- citizens’ physical presence is not only possible but common, the tug of war between these two archetypal conceptualizations of societal membership is salient to the determination of international migrants’ right to health care.

In this section, I dive into the debate of whom societal membership comprises. Taking on the practice of equating membership with legal citizenship first, I suggest it is indeed helpful to consider citizenship status in our formulation of societal membership. By probing the underlying interests that presently drive liberal democratic countries to formally recognize certain

61 Linda Bosniak, “Being Here: Ethical Territoriality and the Rights of Immigrants” (2007) 8 Theor Inq L 389 [Bosniak, “Being Here”].

62 Ibid. at 391 [emphasis original].

173 individuals’ belonging and to bestow citizenship status on them, I posit that societal membership embodies: personal affiliations, social cooperation, self-identification, and subjection to state coercion. When measured against these constitutive features, I contend that an account of membership that preoccupies with legal statuses neglects the de facto societal belonging of many non-citizens who closely affiliate, identify, and cooperate with and are affected by other members. Next, turning to the presence-based approach to societal membership, I argue that sharing a geographical space in and of itself does not generate a strong enough association among individuals to induce a sense of collective belonging. In other words, whereas the use of citizenship status to approximate membership is unduly restrictive, the consideration of territorial presence alone leads to an account of societal membership that is overbroad. Relative to both, I suggest that ordinary residence in a society is a more appropriate proxy for international migrants’ membership, on which their health care entitlement should be based.

5.3.1 Membership as Citizenship

A prominent notion of societal membership relies on the legal status of citizenship to circumscribe people’s belonging to a polity and hence their entitlement to communal provision. According to this view, citizens and societal members are synonymous: citizens denotes members of a state (i.e. citizenship as membership), and societal members are those who enjoy the status of citizens (i.e. membership as citizenship). However, this supposed equivalence of citizenship and societal membership, to quote Miller’s criticism in another context, problematically switches in the same breath “from saying something that is virtually platitudinous to saying something that is quite controversial.”63 While there is little doubt that citizenship as a legal status is bestowed on societal members as a way to indicate and safeguard their unique relationship to society, it does not follow that societal members are limited only to those who are legally citizens. The assumption that citizenship and membership are mutually referential ignores the manipulability of citizenship law, which, as a result of social exclusion, has caused many societal members from marginalized groups to be left out of the citizenship regime. That is, whereas all citizens are thought to be members of a society, not all members of a

63 “Cosmopolitanism: A Critique” (2002) 5 Critical Rev Intl Soc & Political Philosophy 80 at 81.

174 society are given the legal standing of citizens. And this renders the citizenship-based approach to membership determination fallacious.

5.3.1.1 Citizenship as Legal Recognition of Societal Membership

I begin my examination of the citizenship-based account of membership with the aspect of the proposition that I consider platitudinous, namely that citizenship as a legal concept signifies formal recognition of societal membership. The U.S. Supreme Court elaborated on this legal understanding of citizenship as follows:

There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. … For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose, the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed …. When used in this sense it is understood as conveying the idea of membership of

a nation, and nothing more.64

The Supreme Court of Canada likewise declared that “[c]itizenship is membership in a state; and in the citizen inhere those rights and duties, the correlatives of allegiance and protection, which are basic to that status.”65 In Australia, the citizenship statute expresses the same sentiment when it stipulates that “Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.”66

64 Minor v Happersett, 88 US 162 (1875).

65 Winner v. S.M.T. (Eastern) Ltd, [1951] SCR 887 at 918 [Winner].

66 Australian Citizenship Act 2007 (Cth), preamble.

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Underlying this widespread acceptance of societal members’ legal designation as citizens is an appreciation for the need of every person to belong somewhere, which has been considered by theorists to be “a fundamental principle of justice.”67 In a world made up of states that bear the primary responsibility of realizing people’s rights, including securing the necessary conditions and opportunities for people to live and thrive, assurance of people’s ability to belong to at least one state and have such belonging acknowledged is a moral imperative. People who lack recognized membership and are therefore stateless pose a problem for the existing international political order and are “precarious and vulnerable … in the modern world.”68 As Hannah Arendt explained, practically speaking, stateless people are without “a right to have rights,” since their belonging and the resulting moral claim to state responsibility are not formally accepted by any society.69 Moreover, building on Arendt’s work, Serena Parekh identified three ontological harms associated with statelessness.70 First, it deprives people of particularistic ties that shape their unique sense of self and imposes on them a bare human identity instead, which is too abstract for others to relate to.71 Second, to the extent that stateless people are excluded from “the common world,” they lose the space to engage with others meaningfully, which adversely impact their life chances.72 Third, statelessness denies people a political community in which they can act and deliberate, thus undermining their agency.73 The grant of citizenship status to societal members represents the law’s response to these normative concerns. It gives legal recognition and protection to one’s societal belonging, and in so doing it entrenches the understanding that citizenship is membership.

67 Matthew J Gibney, “Statelessness and the Right to Citizenship” (2009) 32 Forced Migration Rev 50 at 50.

68 Joseph H Carens, The Ethics of Immigration (New York: Oxford University Press, 2013) at 21.

69 The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973) at 296.

70 “Beyond the Ethics of Admission: Stateless People, Refugee Camps and Moral Obligation” (2014) 40 Philosophy & Social Criticism 645.

71 Ibid. at 651-652.

72 Ibid. at 653-654.

73 Ibid. at 654-659.

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5.3.1.2 Indicators of Societal Membership

Now, let me proceed to parse the more controversial claim that says societal membership is defined by citizenship. On the surface, this claim appears to be the mere reverse of the accepted notion that citizenship means membership. In actuality, the two arguments call for distinct normative support. On the one hand, as seen, the belief that citizenship connotes membership traces its source to people’s fundamental interest in belonging to a society. As the conferral of citizenship status serves to meet this interest, all citizens are by definition societal members somewhere. On the other hand, the assertion that societal membership can be demarcated by citizenship status invites an inquiry into people’s interest in belonging to a particular society. That is, why should a specific set of people be considered members of a specific country? Only if we can answer this question and subsequently make certain that everyone who rightfully constitutes a member is accorded citizenship status in the pertinent society can we correctly use citizenship status as a shorthand for membership. Thus, in order to assess the validity of the membership-as-citizenship claim, I must first settle the question of who belongs to a particular society and as such is entitled to having their membership recognized by the said society.

In thinking through the question of who belongs, a helpful starting point is the existing system of citizenship conferral. Seeing as citizenship provides legal backing to societal membership, an analysis of who currently possesses citizenship status and the features that these individuals share could offer valuable insight into the attributes that qualify people as members in a polity. Broadly speaking, citizenship status in liberal democratic countries is today assigned to children who are born either within the country’s territory, based on the principle of jus soli, or to parents who are citizens of the country, following the principle of jus sanguinis.74 In addition, most countries have mechanisms in place for eligible foreign nationals to acquire citizenship by naturalization after having resided in the country with acceptable legal statuses for a specified period of time.75 How can liberal democracies’ adoption of these methods of citizenship acquisition be explained?

74 Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006) at 31-32 [Bosniak, Citizen and Alien].

75 Ibid. at 32.

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When it comes to birthright citizenship, conventional wisdom suggests that the choice between jus soli and jus sanguinis largely reflects different conceptions of nationhood. In particular, countries with the tradition of jus sanguinis are often said to champion an ethnic account of nationhood where citizens are linked to one another by a common lineage.76 If this received wisdom is correct, then our examination of what constitutes societal membership would have to be country-specific, with membership in states that embrace jus sanguinis being defined solely by one’s ethnocultural background. From an empirical perspective, though, this view falls short. As Joseph Carens pointed out, in a number of countries, including those that are multiethnic in their makeup, such as Canada and the U.S., the adoption of jus sanguinis cannot simply be explained by the ethnic notion of membership.77 Furthermore, as Western European countries become more pluralistic, most of those that used to strictly adhere to jus sanguinis now also employ jus soli in varying degrees.78 All this suggests a current appreciation among Western receiving countries, irrespective of their historical views, for a construction of societal membership in terms beyond ethnicity. So, what are the non-ethnic impetuses behind the current systems of citizenship conferral in Western liberal democracies? To put it another way, what pushes countries to recognize children born in their territories, children born to their citizens, and foreign nationals eligible for naturalization as their members? Drawing from Carens’s theory of social membership, I argue that modern citizenship regimes are designed to identify individuals who can reasonably be considered societal members based on four factors: communal affiliations, participation in social cooperation, self-identification, and prolonged subjection to the relevant state’s coercive power that limits one’s autonomy.79

By communal affiliations, I am referring to Carens’s observation of “a rich and highly particular set of human ties” that people usually develop and maintain with the community that they belong to.80 Among other things, friendships are made and families are created among co-members,

76 Carens, supra note 68 at 32.

77 Ibid. at 33.

78 Ibid. at 32-35.

79 Supra note 68.

80 Ibid. at 164.

178 they lean on each other for social and emotional support, and they become economically interdependent as their employment and financial ties intertwine. With regard to newcomers as well as children born within the borders of a polity, these special relationships are typically accumulated as one lives in the said political community. Through their day-to-day life, “they become involved in a network of relationships that multiply and deepen over time.”81 For children who are born to parents who are formal members of a society, the affiliations they build with co-members can further arise through familial connections. As Carens posited:

[A child] will have important ties to her parents’ … political community through her immediate family, not because of some imagined genetic link to most other citizens but because of her social situation and her existing and potential relationships. … [S]he will almost certainly have relatives and family friends there whom her family will visit, and she is likely to acquire cultural and emotional ties to the country

through her parents.82

The prevailing paradigms of citizenship conferral protects such relational interests that members have cultivated and have a legitimate desire to preserve.

The second indicator of societal membership that the current citizenship regimes aim to capture is members’ involvement—or, in the case of birthright citizenship, would-be involvement—in a scheme of social cooperation. For Carens, the fact that members frequently live in a shared physical space not only embeds them in a web of affiliations, but it also integrates them in a collaborative social arrangement. As he explained, societal members “participate in labor and housing markets, they pay taxes, they have families that connect them to others in the society in myriad ways, they send children to schools, they participate in neighborhood and other associations, and they are involved in cultural and recreational activities.”83 This notion of membership parallels Rawls’s conception of society as a “cooperative venture for mutual

81 Ibid. at 50.

82 Ibid. at 27-28

83 Ibid. at 102.

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advantage” and citizens qua members as “those engaged in [such] cooperation.”84 In short, members partake in society’s operation. And such participation gives rise to a moral claim to having their belonging recognized.

Another goal of the present citizenship conferral practices is to single out individuals who subjectively identify themselves with a particular society, or what Bosniak termed

“psychological membership.”85 According to Carens, “[w]ho we are depends in large part on how we see ourselves in relation to others, and how they see us.”86 As members become deeper enmeshed in their communal affiliations and cooperative exchanges, their sense of self and of the world usually gets ever more defined by them. They increasingly regard themselves as belonging to the community that they are associated with, and they come to expect others to treat them as such. Indeed, they “may well want to pass that identity on to their child.”87 These social influences on one’s identity are particularly salient for children and youth in their formative years when their perception of who they are is largely molded by their closest relationships and daily experiences.88 Their “parents will play an important role in that formation, of course, but so will the state through its educational system.”89 Such societal contribution to people’s identity formation matters morally. It triggers a duty on the part of the society to respect people’s self- identification and to officially acknowledge their membership.

Fourth, the principles behind jus soli, jus sanguinis, and naturalization also seek to protect the membership interests of individuals who are subjected on a prolonged basis to the pertinent state’s coercive authority. People’s choices and life opportunities are deeply shaped by laws and policies imposed on them by the state they live in.90 And liberal democratic norms dictate “the

84 Supra note 32 at 4-5.

85 Citizen and Alien, supra note 74 at 20.

86 Supra note 68 at 23.

87 Ibid. at 28.

88 Ibid. at 49.

89 Ibid. at 24.

90 Ibid.

180 coercive exercise of political power be democratically justified to all those over whom it is exercised.”91 This means that all individuals capable of independent, informed decision-making should be afforded a say in the creation of the laws and policies of the place they live in.92 Before then, they should be placed on a path such that they are able to see themselves as being readied for partaking in this political deliberation.93 The recognition of a person’s societal membership by the state of residence goes a long way in answering this demand of democratic legitimacy. Not only does the affirmation of membership acknowledges this person’s stake in the outcome of society’s deliberation, but, by eventually granting her a right to political participation, it also assures that “she is entitled to a voice in the community where she lives and that her voice will matter.”94

In sum, the paradigms used by most liberal democracies today for assigning birthright citizenship are founded on the belief that, chances are, children who are born within their territories or to parents who are already their citizens will also grow up to become members in light of their familial and social affiliations, involvement in social cooperation, self-identification, and routine subjection to state authority. Likewise, the extension of citizenship through naturalization aims to bestow membership on people who come to a society at a later time in life and have developed significant ties thereto based on the same four criteria. As such, I argue that these four factors symbolize societal membership as it is generally understood in liberal democratic countries. Notably, this conception of societal membership weighs the four factors in a collective rather than cumulative fashion. Deficiency in one dimension of these societal ties does not by itself eliminate one’s membership claim. As a case in point, liberal democracies normally extend birthright citizenship to all children born in their respective territories to citizen parents, even if the parents lead a reclusive life and it is suspected that the same lifestyle may be imposed on the children. While these children’s societal engagement may be more limited, their familial bonds and liability to state coercion still sufficiently connect them to a polity to warrant their inclusion

91 Abizadeh, “Border Coercion”, supra note 15 at 45.

92 Carens, supra note 68 at 50.

93 Ibid. at 24.

94 Ibid.

181 as members. Furthermore, as Carens acknowledged, the four indicators of societal ties identified here mark the ethical floors instead of ceilings of membership determination.95 Countries can, and indeed do, extend societal membership to individuals based on other considerations.96 My point here is simply that, at a minimum, societal membership qua manifestation of social solidarity should comprise individuals who, when viewed on balance, possess close familial and social affiliations with others in the relevant society, engage in social cooperation, and have their identities, choices, and life chances profoundly shaped by the society’s laws and policies.

5.3.1.3 Under-Inclusiveness of Citizenship Status

Ideally, all societal members in the sense that I just explained would be furnished with citizenship status of the country they belong to, or be on the path toward obtaining such a status within a reasonable time. Carens’s theory of social membership demands nothing less. However, the way that jus soli, jus sanguinis, and naturalization are operationalized in actuality often causes the conferral of citizenship status to come short of the ideal. Take the implementation of jus sanguinis in Canada as an example. Prior to 1977, Canadian law restricted women’s ability to pass down their citizenship to children born abroad except in cases where a child was born out of wedlock.97 A legal distinction was thus created between children born outside of Canada to Canadian mothers and those to Canadian fathers when in reality the two groups’ attachment to Canada, and consequently the strength of their moral claim to membership, might not be considerably different. Ironically, this legal distinction was perpetuated when the government sought to remedy the problem in 1977. Although the new law allowed foreign-born children with Canadian mothers who were previously denied Canadian citizenship—popularly dubbed “Lost Canadians”—to apply for the status by a deadline, the application process was much more onerous than the procedural requirement imposed on foreign-born children with Canadian

95 Ibid. at 163.

96 See e.g., Ayelet Shachar, “Citizenship for Sale?” in Ayelet Shachar et al, eds, The Oxford Handbook of Citizenship (Oxford: Oxford University Press, 2017) 794.

97 See e.g., The Canadian Citizenship Act, SC 1946, c 15, s. 5(b)(i); Canadian Citizenship Act, RSC 1970, c C-19, s. 5(1)(b)(i).

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fathers.98 As it rendered the Canadian citizenship status still out of reach for some Lost

Canadians, the 1977 law was later found unconstitutional,99 and it epitomized the disconnect that could exist between one’s formal and factual membership in a society as a result of state discrimination.

Such mismatch between societal membership and legal citizenship is well documented in the context of naturalization, too. Consider migrants who are permanent residents in receiving countries for example. In terms of societal belonging, there is arguably no meaningful difference between them and citizens of receiving countries. Both interact and collaborate with others in the community as families, friends, neighbours, co-workers, and so on, and they are equally subjected to the community’s laws and policies, which deeply influence their identities and interests. To put it simply, permanent residents and citizens alike “live within the state and participate in its civil society on an ongoing basis.”100 Thus, they both constitute members of society. Yet this is not reflected in their legal statuses. Around the world, a decent number of permanent residents who have fulfilled their residency obligations to qualify for naturalization remain without citizenship status in receiving countries because they are unable or unwilling to meet additional requirements imposed by the state. Such impediments to citizenship access include, inter alia, renunciation of previous citizenship, criminal records and “good character” checks, financial and health-related requirements, language and civic competence, as well as administrative stipulations like application fees.101

Many of these additional eligibility criteria for naturalization bear little connection with the objective of the citizenship regime to formally recognize members’ societal belonging. Rather, their true aim is to limit naturalization to only societal members who are deemed desirable. By way of example, it is unclear to me how the demand that permanent residents meet certain

98 Elke Winter, “(Im)possible Citizens: Canada’s ‘Citizenship Bonanza’ and Its Boundaries” (2014) 18 Citizenship Studies 46.

99 Benner v Canada (Secretary of State), [1997] 1 SCR 358.

100 Carens, supra note 68 at 96.

101 David Reichel, “Do Legal Regulations Hinder Naturalisation? Citizenship Policies and Naturalisation Rates in Europe” (2011) European University Institute Working Paper No RSCAS 2011/51.

183 financial and health-related standards correlates with these individuals’ societal membership. Other than the extreme cases, permanent residents who are less well-off or who live with certain health conditions are still capable of interacting and connecting with others. And over the course of their stay in the receiving country, they may well build a network of relationships. Not to mention, as time passes, we can expect their identities and life prospects to be increasingly shaped by the environment that they live in. To me, these financial and health-related requirements, as seen in earlier chapters of this dissertation, have more to do with receiving countries’ inclination to opening their doors only to newcomers who are demonstrably self- reliant.

Analogous arguments have also been made regarding other restrictions on naturalization. Carens, for instance, contended that some countries’ insistence on permanent residents giving up their existing citizenship serves no real purpose in relation to membership determination.102 Although some may consider the possession of other citizenship as indicating a defect in migrants’ identification with the receiving state, such a claim fails to appreciate the possibility of people developing allegiance to multiple countries, and it downplays other aspects of permanent residents’ societal belonging.103 Similarly, the requirement that permanent residents pass an official language and/or citizenship test as a part of the naturalization process is seen by some as only tangentially related to one’s societal membership. These tests, at least in their present form, are said to be a poor measure of permanent residents’ capacity to take part in social cooperation and civic engagement.104 Instead, they are often deployed as a tool of immigration control, and they tend to favour permanent residents who are more educated and from a higher socioeconomic class.105

102 Supra note 68 at 53-54.

103 Ibid.

104 Ibid. at 59-60; see also, Liav Orgad, “Creating New Americans: The Essence of Americanism Under the Citizenship Test” (2011) 47 Hous L Rev 1227.

105 Orgad, supra note 104; see also, Amitai Etzioni, “Citizenship Tests: A Comparative, Communitarian Perspective” (2007) 78 Political Q 353.

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A thorough analysis of the ethical defensibility of these naturalization eligibility requirements is beyond the scope of this dissertation. All I wish to show here is that in many societies, the citizenry and societal members are far from congruent. When translating the principles of jus soli, jus sanguinis, and naturalization into practice, the rules of citizenship conferral often become entangled with calculations that are unrelated to the four dimensions of societal membership, namely affiliations, social cooperation, self-identification, and state coercion. Specifically, the legal citizenship regime is routinely co-opted by forces of social exclusion to favour a particular composition of society. As Carens reminded us, “[p]eople acquire citizenship as a result of some chosen set of legal rules, some political practice that states have established.”106 The assignment of citizenship status is therefore manipulatable, which makes it problematic as a marker of societal membership. Indeed, as seen, the use of citizenship status for the delineation of us and them tends to leave out many individuals, especially migrants, who properly constitute one of us.

5.3.2 Membership as Territorial Presence

I now turn to another common conception of societal membership that equates it with territorial presence. I show that, like citizenship status, physical presence within a state’s territory amounts to an inadequate proxy for membership as it is generally understood by liberal democratic societies. While a look at individuals’ physical presence may help us identify many societal members, it also captures many people whose connection to society fails to reach the required level of belonging.

5.3.2.1 Problems with Ethical Territoriality from the View of Societal Membership

The presence-based notion of societal membership can be encapsulated in what Linda Bosniak termed “ethical territoriality,” which stands for “the conviction that rights and recognition should extend to all persons who are territorially present within the geographical space of a national state by virtue of that presence.”107 That is to say, the physical borders of a political community

106 Supra note 68 at 21.

107 Ibid at 389-390.

185 for the most part should double as the divide between those who belong and those who do not. And as a general rule, everyone who is physically present within the borders of a political community is entitled to equal treatment and benefits, including health care entitlement.

How does the fact of being in the same territory facilitate people’s sense of attachment to one another so as to constitute them as members a society? Sarah Song offered three explanations.108 First, she noted that people who co-exist in the same geographical space share special affiliations with each other as they often become “family, friends, neighbors, and co-workers.”109 On this point, Yishai Blank similarly advanced that physical proximity between individuals “enables daily and random encounters,” breeds “the feeling of being ‘stuck’ together,” and aids the formulation of “common goals, purposes, and preferences” among them.110 Second, Song pointed out that people occupying the same territory partake in a scheme of social cooperation, through which they develop a common set of sociopolitical institutions and contribute to communal provision.111 Third, insofar as everyone present within the territorial jurisdiction of a state is subject to its coercive power, which profoundly shapes their life chances, the principle of self-determination dictates that all these individuals should be afforded equal rights in order to influence how the state’s force is wielded.112

There is significant overlap between Song’s argument and my formulation of societal membership. Effectively, Song’s support for ethical territoriality is rooted in her belief that physical presence breeds interpersonal relationships, brings about social cooperation, and subjects people to coercive state power that affects their choices and opportunities. As shown, I am in agreement with Song that affiliations, social cooperation, and subjection to a state’s laws and policies are pertinent indicators of societal membership. Where she and I part ways is on the

108 “The Significance of Territorial Presence and the Rights of Immigrants” in Sarah Fine & Lea Ypi, eds, Migration in Political Theory: The Ethics of Movement and Membership (Oxford: Oxford University Press, 2016) 225.

109 Ibid. at 229.

110 “Spheres of Citizenship” (2007) 8 Theor Inq L 411 at 423.

111 Supra note 108 at 234.

112 Ibid. at 237.

186 question of whether these measures of societal membership can be satisfied as a result of people’s co-presence alone. It seems strenuous to suggest, for example, that foreign visitors who have no prior personal ties to a destination country would suddenly form a special kind of affiliations or embark on social collaboration with local inhabitants as soon as they set foot on the country’s territory. I share Bosniak’s concern that, for this proposition to make sense, one arguably must assume that “the person to whom we owe our co-territorial obligation actually reside or dwell (lead a life) within the territory.”113 It is through living together and depending on one another to meet the demand of everyday life that people are brought into sufficiently close interactions so as to engender the type of human relations necessitated by societal membership. In fact, this is a point that Song appeared to accept as well. When discussing the moral significance of affiliations and social cooperation, she regularly referenced “inhabitants” and

“residents” of a territory as the subjects of her analysis.114 This conflation of residents and territorial occupants is problematic. It draws on the factual context of the former to support the societal belonging of the latter, thus resulting in a notion of membership that is too broad and disconnected from people’s realities.

Song’s appeal to state coercion as the normative basis for ethical territoriality likewise falls short by conflating co-presence and co-residence. While it is true that being inside a country usually places people within the purview of that country’s legislation, there are clear disparities between the degree of state coercion typically experienced by ordinary residents and that by people who newly arrive or are only present temporarily. As a case in point, in many countries, tourists who are physically present are not required by law to pay, or pay to the same extent as residents do, into social programs, including health care. It follows that a state’s laws and policies do not impact the life chances and opportunities of everyone within its territory equally.115 For a society to ignore this fact and to bestow membership and related rights uniformly on everyone who is territorially present raises a conceptual question: why should people whose autonomy is minorly

113 “Being Here”, supra note 61 at 405.

114 See e.g., supra note 108 at 227 & 234.

115 Adam B Cox & Adam Hosein, “What Does Equality for Immigrants Require?” (2013) NYU School of Law Public Law Research Paper No 11-67.

187 curtailed by a state’s coercive power be treated in the same way as those whose lives are significantly affected in virtually all aspects? As Song herself acknowledged: “The coercion principle is scalar. Different degrees and forms of coercion require different justifications.”116 To be sure, individuals’ short-term exposure to state coercion indeed gives them moral entitlement to certain fundamental rights, including, as I shall argue later, a basic basket of health care coverage. But the state’s moral obligation in this circumstance is not extensive enough to encompass the bestowment of membership and attendant rights.

For the reasons above, I am of the view that relying on territorial presence to approximate the contour of societal membership and, by implication, health care entitlement overreaches. It sweeps many individuals into the domain of members despite their arguably tenuous connection with the society in question. However, to bolster my conclusion, I wish to address two observations that some may point to as seemingly undercutting the validity of my rejection of ethical territoriality.

5.3.2.2 Problems with Ethical Territoriality from the View of Global Solidarity

The first of these observations concerns my claim that territorial co-occupants, on this fact alone, do not possess sufficiently strong bonds among them to make up a collectivity. Whereas I have limited my assessment of the link between belonging and co-presence to the (sub-)national context, an alternative thesis suggests that a sense of belonging among co-occupants does exist on a global level. According to cosmopolitan ethics, the entire global population can be seen as a single community held together by our common needs and experiences of “being human.” Every person supposedly represents “a citizen of the world.”117 When cosmopolitanism is grafted onto today’s state-based world system, its emphasis on universal humanity imposes on states the duty to recognize the equal moral worth of all persons. With respect to health care, this means that states must extend equal health care entitlement to everyone present on their respective territories. In this case, the normative significance of state borders stems from not their

116 Supra note 108 at 238.

117 Martha Nussbaum, “Patriotism and Cosmopolitanism” (1994) 19:5 Boston Rev 3 at 4.

188 correspondence with societal membership, but their demarcation of territorial jurisdiction. Individuals’ physical presence within the purview of a state’s authority, without more, is deemed enough to ground a claim for equal treatment.

I am sympathetic to this cosmopolitan stance. I agree that we can, and indeed do, think of ourselves as connected to other people by our shared humanity.118 The very regime of international human rights, for instance, rests on the recognition that all people constitute “members of the human family” united by our “inherent dignity and … equal and inalienable rights.”119 Nevertheless, I do not believe this panhuman association has at the present time given rise to full-fledged global solidarity, in the proper sense of “non-calculating co-operation based on identification with a common cause.” As Abizadeh conceded, “[t]here are undoubtedly many real-world obstacles facing the ancient cosmopolitan dream of global solidarity and a community of humankind.”120 Among these obstacles are the relatively scant efforts that have been put toward cultivating solidarity on the global scale, contrary to the panoply of institutions and processes employed by (sub-)national communities—including, as Walzer mentioned, communal provision, but also construction of shared symbols, historical narratives, traditions, cultures, etc.—to systemically foster and reinforce people’s more particularistic ties. As a result, the communal feeling that people currently have toward humanity largely pales in comparison with the intensity of the interpersonal bonds that we have come to associate with social solidarity.

The disappointing response taken to date by countries around the world in dealing with the ever- increasing number of refugees offers some empirical support for this reality. Taking Europe as an example, some countries have gone so far to stop the arrival of refugees as reinstating border

118 For empirical data that supports the existence of a global identity, see e.g., Florian Pichler, “Cosmopolitanism in a Global Perspective: An International Comparison of Open-minded Orientations and Identity in Relation to Globalization” (2011) 27 Intl Sociology 21.

119 See e.g., Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, preamble; International Covenant on Civil and Political Rights, 16 December 1966, 993 U.N.T.S. 171, preamble, 6 I.L.M. 368; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, preamble, 6 I.L.M. 360.

120 “Does Collective Identity Presuppose an Other? On the Alleged Incoherence of Global Solidarity” (2005) 99 American Political Science Rev 45 at 47.

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controls that were once suspended in the quest of regional integration.121 And despite repeated calls for solidarity from the United Nations High Commissioner for Refugees, European leaders have struggled to work together and agree on an equitable system of responsibility sharing.122 These government measures, in my view, is a far cry from “non-calculating co-operation.” Thus, rightly or wrongly, global solidarity remains for the time being more as an aspiration than actuality.

Without global solidarity, the normative demand imposed on (sub-)national government to extend equal health care benefits to everyone present on their territories runs into the problem of illegitimacy as mentioned, and risks becoming untenable in the longer term. In a world where panhuman consciousness is still relatively weak, to found the obligation of ethical territoriality thereon will likely face fiery contestation from individuals who find themselves more tightly bound by narrower types of loyalties and wish to share resources on those grounds instead. That is, without the corresponding solidarity to back it up, a cosmopolitan account of ethical territoriality falls short of justifying why people should accept the same obligation to help a struggling person that we feel only loosely connected with as we do another struggling person with whom we have developed a close relationship, especially when this relationship has intimately shaped our perceptions of self and the world. Such a notion of distributive justice, as particularistic theorists postulated, “posits a fantastically detached and dispassionate account of the individual moral agent,”123 and “fail[s] to take seriously enough the associative relationships that individuals do and almost certainly must develop to live successful and rewarding lives.”124

121 Ian Traynor, “Refugee crisis: Schengen scheme on the brink after Amsterdam talks” The Guardian (25 January 2016) 2.

122 UN High Commissioner for Refugees, Briefing Notes, “UNHCR: 6 steps towards solving the refugee situation in Europe” (4 March 2016), online: UNHCR ; Christina Boyle, “More EU border controls” Los Angeles Times (15 September 2015) A4.

123 Toni Erskine, “Qualifying Cosmopolitanism? Solidarity, Criticism, and Michael Walzer’s ‘View from the Cave’” (2007) 44 Intl Politics 125 at 127.

124 Charles R. Beitz, “International Liberalism and Distributive Justice: A Survey of Recent Thought” (1999) 51 World Politics 269 at 291.

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To be clear, my point here is not that global solidarity cannot supply presence-based decision- making regarding health care entitlement with the necessary relational justification. Unlike Bosniak, I do not presume that “[p]eople are by nature particularistically motivated, and the idea that we could be compelled to extend solidarities of justice to the world at large is politically utopian and sociologically naïve.”125 My claim is simply that the level of mutual identification existing today among the global population as a whole does not reach the state of solidarity, and this in turn raises genuine questions about the legitimacy of mandatory, broad-based resource sharing that claims its roots in cosmopolitan ethics. One day, if the communal sentiments among humankind acquire the force of solidarity, then accusations of ethical territoriality being detached from the reality of human associations would arguably become much less potent. But to get there, a lot still needs to be done by all actors on the world stage to strengthen the conception of a global community and to put in place the necessary infrastructure for the growth, articulation, and fortification of panhuman ties.

5.3.2.3 Differences between Universal and Communal Rights

Some commentators have also correctly pointed out that a number of fundamental rights and freedoms—including, among others, rights to life, personal integrity, liberty, and due process, as well as freedom of religion, expression, assembly, and association—are now extended by

Western liberal democracies to virtually everyone coming under their jurisdictions.126 For example, the U.S. Supreme Court confirmed as far back as in 1886 that the civil rights guaranteed in the Fourteenth Amendment to the Constitution “extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, color, or of nationality.”127 Similarly, in Canada, the constitutional protection of the rights to life, liberty, and security of the person has been found to apply to “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.”128

125 “Being Here”, supra note 61 at 407.

126 See. e.g., Carens, supra note 68 at 92-96.

127 Yick Wo v Hopkins, 118 US 356 at 356 (1886).

128 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, para 35.

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In light of these observations, my rejection of ethical territoriality as the principle for determining health care entitlement admittedly begs the following question: why cannot the right to health care be guaranteed in a similar way? Was I too quick to dismiss the bond between territorial co-occupants and in turn the appropriateness of the presence-based approach to delineating societal membership? Or, viewed from a cosmopolitan perspective instead, have I underestimated the intensity of the fellow feeling that presently exists between individuals as members of the human community? Either way, at first glance, my concern about ethical territoriality placing a demand that is too exacting on governments relative to the current state of solidarity appears to be unwarranted.

In response to this criticism, it behooves me to reiterate the pluralist nature of the arguments that I am making in this dissertation. As I stressed at the outset of this chapter, consideration of membership is relevant to the analysis of most, but by no means all, questions relating to health care entitlement. For health care services such as primary care and treatment that cannot be delayed, societies maintain an obligation to ensure their coverage even with respect to non- member migrants. That is, to the extent that we can relate to our fellow human beings’ suffering and/or deprivation and share the desire for such a plight to be remedied, a moral responsibility is imposed on us to come to their aid if we are sufficiently connected to them. Being co-members is but one kind of interpersonal connection. Remedial responsibilities may also arise, for example, when a society has somehow contributed to the plight of the people in question, or when it stands as the entity that is most capable of lending a hand in cases of calamities such as medical emergencies.129 Contexts will dictate which of these principles is the most appropriate for deciding who bears the duty to intervene and help. The advantage of such a pluralist approach, as Miller explained, is that it “treats the obligation to relieve deprivation and suffering as of overriding concern. By using multiple criteria, we ensure that there is always some agent who can be assigned responsibility for remedying [one’s] condition.”130

129 Miller, “Distributing Responsibilities”, supra note 20 at 455-464.

130 Ibid. at 471 [emphasis original].

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Again, a state’s obligation to extend health care coverage outside the circumstances prescribed by membership is a matter that I will occupy myself with in Chapter 6. I allude to it here simply to explain why there is no contradiction between the membership-based argument that I advance in this chapter and the presence-based logic that seemingly undergirds liberal democracies’ extension of certain fundamental rights. In my view, they epitomize two different and complimentary considerations that are called for when identifying bearers of moral duties. The abovementioned fundamental rights that are guaranteed by states to everyone within their jurisdictions resemble some aspects of the health care entitlement that I argue ought to be made universally available to territorially-present migrants. In part, these rights aim to protect individuals from state coercion. Inasmuch as states in these circumstances represent both a threat to people’s life, civil liberty, and personal security as well as someone that is suitably positioned to correct this wrong, the pertinent connection that justifies state responsibilities toward those who are territorially present lies more in causation and remedial capacity than in membership. By contrast, state duty to ensure people’s access to health care beyond the universally required minimum is seldom derived from concerns that the government has caused, or risks causing, people’s health conditions. In such a context where the allocation of moral duty depends less on the search of fault, the significance of communal association, hence social solidarity, as an alternative guiding principle increases.

5.3.3 Membership as Ordinary Residence

Let me pause for a moment and take stock of the arguments I have made so far. I began this chapter with an observation that social solidarity is indispensable to the maintenance of broad- based resource redistribution that is called for by contemporary health care systems. Solidarity, I argue, supplies the relationship between contributors and recipients of health care resources with the necessary justification and decency. Redistribution that overshoots or comes short of the ambit of solidarity, therefore, is ethically suspect. But how could the boundaries of social solidarity be delineated? I presented societal membership as an answer. I illustrated that societal membership both inspires and delimits solidarity in a community, and this makes the two concepts coterminous. Accordingly, in order to be just, the scope of health care resource redistribution in a society ought to encompass all its members, including international migrants to the extent that they can be so characterized. This in turn prompted me to embark on a study of

193 the meaning of societal membership and its appropriate markers. I showed that societal membership is obtained when people can be said to belong to a society as a result of their affiliations, social cooperation, self-identification, and subjection to autonomy-limiting laws and practices. I further showed that these four aspects of belonging cannot be adequately captured when we simply look at either people’s citizenship status or their territorial presence. Whereas the use of citizenship as an indicator of societal membership tends to leave too many people out, a presence-based analysis is too sweeping.

This brings us to where we are. It appears that going forward we have two general options for determining whether a person constitutes a societal member. We can conduct an individual assessment of people’s belonging by examining whether, on balance, their affiliations, social cooperation, self-identification, and subjection to state authority meet a specified threshold of significance. Or, we can search for a proxy for societal belonging that is different from citizenship status or territorial presence that better embodies these four membership-related considerations. I favour the latter option. A population-wide individual assessment is costly and time-consuming.131 Not to mention, an assessment that requires weighing the four dimensions of belonging as a whole is likely going to be highly discretionary. And when allowed to operate alongside the forces of social exclusion, such discretion risks producing outcomes that are discriminatory against marginalized groups.132

Instead, I agree with Carens that our determination of people’s societal membership should employ an indicator that is “relevant, objective, and easy to measure.”133 In my view, a combination of citizenship status and ordinary residence fits the bill. I should make it clear at this juncture that it is not my intention in this dissertation to query citizens’ societal membership, especially in the context of determining health care entitlement. My criticism against the use of citizenship as a stand-in for membership is about the under-inclusiveness of this practice, not its merit. That is, citizenship status alone catches the societal membership of some, but not all,

131 Carens, supra note 65 at 166.

132 Ibid.

133 Ibid. at 163.

194 individuals who belong. Accordingly, I will assume for the purpose of this dissertation that individuals who are legally citizens of a country are members thereof. But when it comes to people who are not legally citizens, I argue that ordinary residence should be used to signal their membership in a society. This turn to ordinary residence, in other words, is meant as an addition to, rather than a replacement for, the use of legal citizenship status to denote membership.

Now, let me elaborate on the appropriateness of ordinary residence as a proxy for non-citizens’ membership in the pertinent society. I do not think it is controversial to suggest that for most people, where they live is considered home. People normally develop a strong attachment to their home.134 By simply going through their daily lives, residents of a society, irrespective of their citizenship status, come to interact with one another. Over time, they become embedded in the society’s economic and social fabric, and their identities and life opportunities become closely intertwined with those of their co-residents. All this gives them a claim to societal membership. As Walzer observed, resident non-citizens “experience the state as a pervasive and frightening power that shapes their lives and regulates their every move,” and “[t]hey do socially necessary work, and they are deeply enmeshed in the legal system of the country to which they have come.”135 Norman Daniels and Keren Ladin similarly concluded that long-term resident migrants “should be considered members of society by virtue of their working, paying taxes, and being active members of local communities.”136 Therefore, in a liberal democratic society, a fair approximation of who members are should consist of not only people who have received citizenship status, but also non-citizens who are ordinarily resident.

Admittedly, “ordinary residence” is a term with disputable meanings.137 I use it here strictly to encapsulate the two indicators of societal membership chosen by Carens, namely residence and

134 See generally, Maria Lewicka, “Place Attachment: How Far Have We Come in the Last 40 Years?” (2011) 31 J Environmental Psychology 207.

135 Supra note 22 at 59-60.

136 “Immigration and Access to Health Care” in John D Arras, Elizabeth Fenton & Rebecca Kukla, eds, The Routledge Companion to Bioethics (New York: Routledge, 2015) 56 at 63.

137 See e.g., Levene v Commissioners of Inland Revenue, [1928] A.C. 217; Thomson v Canada (Minister of National Revenue), [1946] SCC 209 [Thomson]; MacPherson v MacPherson (1977), 13 OR (2d) 233; R v Barnet London

195

time.138 In other words, for my purpose here, non-citizens who have established their primary residence in a receiving society and lived there for a considerable period of time would qualify as being ordinarily resident, and by extension, are societal members. As mentioned, the development of societal ties and incurrence of societal influences commonly ensue from living in a community. As people’s residence in a community lengthens, empirical data illustrate that these attachments and influences accrue.139 “At some point,” Carens explained, “a threshold is passed. They have been there long enough that they simply are members of the community with a strong moral claim to have that membership officially recognized.”140 It is in this way that ordinary residence serves as a proxy for “richer, deeper forms of connection” that characterize one’s societal belonging.141 Consequently, unlike some definitions of the term that are used to circumscribe migrants’ health and social care entitlement,142 I do not presuppose the attainment of particular legal statuses for migrants to be considered ordinarily resident in a society. What matters for societal membership is not how migrants are perceived in the eyes of the law, but their lived experiences. And the two are not necessarily consistent. To name but one example, in a good number of countries, it has been shown that many migrants labelled by the state as temporary residents in fact live there on a protracted basis.143 Thus, an account of ordinary residence that incorporates legal statuses as a consideration would suffer from the same manipulability problem associated with the use of citizenship status as a proxy for societal membership, and miss the societal belonging of many resident non-citizens.

Borough Council, Ex parte Shah, [1982] UKHL 14, [1983] 2 A.C. 309; R(YA) v. Secretary of State for Health, [2009] EWCA Civ 225.

138 Supra note 68 at 165.

139 See e.g., John D Kasarda & Morris Janowitz, “Community Attachment in Mass Society” (1974) 39 American Sociological Rev 328.

140 Ibid. at 50.

141 Ibid. at 165.

142 See e.g., UK, Guidance on Implementing the Overseas Visitor Charging Regulations (Leeds: Department of Health & Social Care, 2018) at 29-30; RRO 1990, Reg 552, s 1.4.

143 See e.g., Jenna Hennebry, “Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada” (2012) 26 IRPP Study 1; Stephen Castles, “Guestworkers in Europe: A Resurrection?” (2006) 40 Intl Migration Rev 741; Larbi-Odam v MEC for Education (North-West Province), [1997] ZACC 16.

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Some may dispute this view by pointing out that being ascribed certain precarious immigration statuses, or having no legal status at all, could hinder people’s engagement with others in society, thus weakening their moral case for societal membership. To this, I offer two responses. First, both anecdotes and empirical studies show that, against all odds, many ordinarily resident migrants with precarious or no legal statuses do develop affiliations and partake in social cooperation in receiving societies, especially if they have lived there for a significant amount of time. Among other things, they build families and friendships with co-residents, do meaningful work, engage in community activities, and become involved in political activism.144 As such, for many of these resident non-citizens, notwithstanding their immigration statuses, it will be a mistake to paint them as lacking sufficient societal ties to found a claim to membership. But unquestionably, some ordinarily resident migrants do experience social isolation caused or exacerbated by their precarious or lack of immigration statuses.145 What then? This brings me to my second point. It is worth reiterating that the four dimensions of societal belonging are meant to be considered collectively, and deficiency in some of these dimensions is not automatically fatal to a membership claim. As much as social isolation occasioned by having precarious or no legal statuses brings into question ordinarily resident migrants’ societal engagement, it also accentuates the severity of receiving societies’ constraint on these residents’ choices and life opportunities. In situations like this, where social isolation is state-imposed rather than voluntary, I think liberal democratic principles would suggest the overall weighing of the four belonging factors should come out in favour of recognizing these ordinarily resident migrants’ societal membership. As Carens opined, “social disconnection should be seen as a reason for concern rather than a justification of exclusion.”146

144 See e.g., Alice Bloch, “Living in Fear: Rejected Asylum Seekers Living as Irregular Migrants in England” (2014) 40 J Ethnic & Migration Studies 1507; Rosemary Sales, “Giving More than They Receive? Migrant Women and Welfare in Britain” (2007) 3:3 Intl J Migration, Health & Social Care 6; Kip Austin Hinton, “Undocumented Citizens: The Civic Engagement of Activist Immigrants” (2015) 10 Education, Citizenship & Social Justice 152.

145 See e.g., Lilian Magalhaes, Christine Carrasco & Denise Gastaldo, “Undocumented Migrants in Canada: A Scope Literature Review on Health, Access to Services, and Working Conditions” (2010) 12 J Immigrant & Minority Health 132.

146 Supra note 68 at 168.

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While I have been quite clear that the assessment of ordinary residence should involve no considerations relating to legal statuses, I have been relatively vague about what I mean by people having established their primary residence in a society, as well as how much time must elapse before people’s residence crystallizes into societal membership. I do so deliberately. I think there are more than one legitimate way for receiving countries to answer these questions about residence and time, and the choice between these options should be left to individual countries, informed by their respective processes of democratic deliberation. Let me elaborate. In regard to the establishment of primary residence, the point of this indicator is to reflect that a non-citizen has made the relevant receiving country “the place where in the settled routine of his life he regularly, normally or customarily lives.”147 Again, to guard against the potential bias that may be associated with the exercise of discretion, I think this indicator is best operationalized using an objective proxy, such as specifying a minimum number of days that non-citizens must be physically present per year in a receiving society. How many days exactly? This is not a question that invites only one valid answer. My own view is that if people spend at least half of the year in a place, then that place constitutes their primary residence. But a country may decide to require a length of physical presence that is slightly longer or shorter and it will be just as reasonable. To borrow Carens’s words, “I don’t pretend that the question can be precisely settled on the basis of a theoretical principle.”148 My hesitation applies equally to the question of how long non-citizens must reside in a receiving country to qualify as members. Five years appears to be a sensible answer, seeing as it is the length of residency that a good number of liberal democratic countries require their permanent residents to undertake before becoming eligible for naturalization.149 Yet some countries have imposed a shorter residency obligation and some longer.150 I do not think the choice between these options, so long as they are within limits, can

147 Thomson, supra 137 at 231.

148 Supra note 68 at 104.

149 See e.g., Immigration and Nationality Act, 8 USC §1427; British Nationality Act 1981 (UK), c 61, Schedule 1; Citizenship Act 1977 (NZ), 1977/61, s 8(2); art 21-17 C civ.

150 See e.g., Immigration and Refugee Protection Act, SC 2001, c 27, s 28(2) [IRPA]; Germany, Nationality Act, 22 July 1913, Reich Law Gazette I 583, s.10(1).

198 be dictated by some normative principles. There will always be a degree of arbitrariness related to such a line-drawing exercise.

However, accepting that the definition of ordinary residence will inevitably involve some judgement calls is not the same as saying it is impossible for us to “make confident judgements about the extremes.”151 For example, it will surely be excessive if a receiving society demands that a non-citizen be physically present for every day of the year in order to demonstrate the establishment of primary residence therein. We know from experience, including the tales of seasonal agricultural workers in Canada, that people who live in a community for less-than-a- year at a time but do so over a prolonged period can and do form special affiliations with co- residents, contribute to social cooperation, and have their identities and interests significantly shaped by the community’s laws and policies.152 Likewise, requiring migrants to live in receiving countries for more than ten years in order to be considered members would most likely fall outside the realm of reasonable alternatives. As the moral claim for societal membership rests in part on the need to recognize people’s ongoing collaborative contribution and subjection to state control, an over-ten-year wait arguably renders membership too distant and inadequate a safeguard of people’s existing interests.

To summarize, I argue that ordinary residence—understood as the establishment of primary residence in the society in question for a reasonably substantial period of time—fittingly approximates non-citizens’ membership in a receiving country. Given that societal membership concretizes the span of social solidarity, communal provision of health care should encompass all members, including non-citizens who are ordinarily resident regardless of whether they are legally authorized to remain permanently, temporarily, or not at all. To demand more than this is prima facie illegitimate, as the distribution of health care resources to some beneficiaries would lack the appropriate solidarity to act as a relational justification. Conversely, failing to extend

151 Carens, supra note 68 at 49.

152 See e.g., “Seasonal Workers Provide Necessary Agricultural Labour”, Flamborough Review (3 May 2013); Nicholas Keung, “Migrant Workers Pay the Price for the Food Canadians Eat”, Toronto Star (6 October 2017) A1.

199 health care coverage to all societal members, as I will explain in the section still to come, raises concerns about injustice, making it equally morally suspect.

The payoff of this membership-based argument in practice is that many non-citizens with precarious or no legal statuses but are ordinarily resident in receiving societies, contrary to the health care disparities observed in Chapter 2, must be afforded health care entitlement comparable to that of their citizen counterparts. Their ordinary residence indicates their standing as societal members, and they should be treated accordingly by receiving societies. Even so, would migrants who lack secure legal statuses in receiving countries likely come forward and exercise such health care entitlement? If nothing else changes, our current knowledge about precarious-status migrants’ access to health care services that are available to them does not give us many reasons to be optimistic.153 An in-depth analysis of this gap between health care entitlement and access as well as how to remedy it, unfortunately, falls outside the scope of this dissertation. As I made clear in Chapter 1, being the start of a fuller study, the current project focuses primarily on migrants’ health care entitlement, which is hoped to serve as the normative basis for future research into issues concerning migrants’ health care access. That said, I note that in his examination of the ethics of immigration, Carens relied on the same theory of social membership to contend a right for undocumented migrants to have their legal statuses regularized upon establishing ordinary residence in receiving societies so as to safeguard their membership interests.154 I see much merit to this claim. Assuming that having such a right to a secure legal status is indeed defensible, I think its guarantee will go a long way toward alleviating undocumented migrants’ fear of deportation, thus facilitating the realization of their health care entitlement.

5.3.4 Membership Interests of Would-Be Ordinarily Resident Migrants

As the attainment of ordinary residence entails the passage of time, its employment as an indicator of non-citizens’ societal membership prima facie deprives many migrants, including

153 Karen Hacker et al, “Barriers to Health Care for Undocumented Immigrants: A Literature Review” (2015) 8 Risk Management & Healthcare Policy 175.

154 Supra note 68 at 141-157.

200 those legally designated as permanent residents and those as refugees, of a claim for equal health care entitlement until some requisite time has elapsed. Viewed in this light, my proposal seems to be much more restrictive than the policies of many Western liberal democracies at present. As we saw in Chapter 2, in virtually all Western countries, individuals with permanent resident status as well as recognized refugees are generally granted health care coverage that is on par with what citizens receive, almost immediately from the day they acquire the relevant statuses, even if they have not previously resided in the country. Am I suggesting these policies are illegitimate?

No. My equation between migrants’ ordinary residence and their societal membership is subject to one important exception. I argue that some migrants not yet ordinarily resident in Western receiving societies may nevertheless possess sufficient membership interests that warrant legal protection, because the receiving societies have effectively become their home and their ordinary residence therein is arguably a matter of course. Included in these members-in-waiting are migrants who have been granted permanent resident status by receiving states and humanitarian migrants such as refugees and stateless migrants who lacked a proper “home” beside the receiving society. When it comes to these migrants, to quote Bosniak out of context, “[t]he fact of [their] ‘hereness’ itself triggers the extension of extensive rights and recognition.”155 Among other things, this means that so long as these migrants remain territorially present, they must be furnished with the same level of health care coverage as what is given to their citizen counterparts, even before their attainment of ordinary residence.

In regard to migrants with permanent resident status, the departure from the ordinarily resident rule when determining societal membership is justified by the fact that when compared with other newly arrived migrants, their establishment of ordinary residence in the foreseeable future can usually be predicted with a higher degree of confidence. In most Western receiving countries, migrants must successfully demonstrate an intention to settle before a permanent

155 “Being Here”, supra note 61 at 391 [emphasis original].

201

resident visa or permit may be issued.156 This requirement is often buttressed by rules that limit lawful permanent residents’ ability to travel abroad on a prolonged basis, or rules that otherwise demand lawful permanent residents’ demonstration of their continued intention to make receiving countries home.157 In other words, not only is there a formal expectation that permanent-resident-status holders would become ordinarily resident in due course, but this expectation is also legally enforced. Effectively, lawful permanent residents are asked to conduct themselves ab initio as if they are members of Western receiving countries: they are required to treat receiving societies as their home, make appreciable commitment thereto, and structure their lives accordingly. That is, from the get-go, these migrants “acquire interests and identities that are tied up with other members of the society” and “[t]heir choices and life chances … become shaped by the state’s laws and policies.”158 It is only fair that, in turn, they are treated as societal members with attendant rights, including an adequate level of health care protection.

Not to mention, as a matter of public policy, it is also in receiving societies’ best interest to consider lawful permanent residents as their members from the start. To the extent that communal provision like publicly-funded health care supports newcomers’ settlement and integration, making it available in a timely fashion would mean that receiving societies stand to gain economically and socially from lawful permanent residents’ successes earlier.159 Moreover, there are potential cost-savings to be had. For instance, by making lawful permanent residents

156 See e.g. Immigration and Refugee Protection Regulations, SOR/2002-227, s 70(1); Immigration Act 2009 (NZ), 2009/51, s 71(1).

157 See e.g., IRPA, supra note 150, s 28; The Immigration (Leave to Enter and Remain) Order 2000 (UK), 2000 No. 1161, art 13; US, 9 FAM 502.7-2(B).

158 Carens, supra note 68 at 50.

159 See e.g., Peter Dungan, Tony Fang & Morley Gunderson, “Macroeconomic Impacts of Canadian Immigration: Results from a Macro Model” (2013) 51 British J Industrial Relations 174; Sari Pekkala Kerr & William Kerr, “Economic Impacts of Immigration: A Survey” (2011) 24 Finnish Economic Papers 1; Marc Hooghe, Tim Reeskens & Dietlind Stolle, “Diversity, Multiculturalism and Social Cohesion: Trust and Ethnocentrism” in Keith Banting, Thomas J Courchene & F Leslie Seidle, eds, Belonging? Diversity, Recognition and Shared Citizenship in Canada (Montreal: Institute for Research on Public Policy, 2007) 387.

202 eligible for publicly-funded health care early on, receiving societies may reduce the likelihood of cost-related treatment delays and the resultant fiscal impact down the road.160

So far as refugees and stateless migrants are among non-citizens who may be granted permanent residence in receiving countries, the ethical and public policy rationales that I advanced just now for the recognition of lawful permanent residents’ membership prior to ordinary residence apply to them equally. But even when refugees and stateless migrants are not conferred permanent residence, I argue that once their legal statuses have been confirmed, their territorial presence should in and of itself denote societal membership. This is because given the unique challenges these migrants face in asserting membership in countries of nationality or former habitual residence, the safe harbour offered by Western receiving states essentially renders them home for these migrants, at least until secure and voluntary return to sending countries becomes possible. The strong attachments that people usually develop in relation to their home carry moral weight and deserve legal protection.

Let me elaborate. Recall my discussion earlier concerning the moral significance of societal membership. Drawing on the work of Hannah Arendt and her followers, I contend that in a world heavily dependent on states to actualize and safeguard our rights, justice requires every person to be equipped with the ability to belong to at least one state.161 Assuming that this normative requirement holds true in reality, it implies that before migrants’ establishment of ordinary residence (or acquisition of lawful permanent resident status) in receiving countries, thus becoming a member thereof, their entitlement to communal provision like health care could, and arguably should, continue to be founded on their pre-existing membership in sending societies. This is what my membership-based account of health care entitlement entails. But this thesis comes apart when applied to refugees and stateless migrants, who effectively do not have such prior membership to fall back on. By definition, stateless migrants’ membership claims are not

160 See e.g., Andrea Bobadilla et al, “Ontario Healthcare Coverage Eligibility Among New Permanent Residents: A Scoping Review” (2017) 15 J Immigrant & Refugee Studies 384.

161 See Part 5.3.1.1, above.

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recognized by any state in the world.162 Likewise, refugees’ membership in sending countries is more imagined than real as they are unable or unwilling to avail themselves of these countries’ protection due to either “well-founded fear of being persecuted” or “serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order.”163 In short, these migrants’ dealings with sending countries are plagued by ostracism, animosity, and/or threats. Not only do these structural sources of insecurity impede them from building and maintaining communal affiliations, partaking in social cooperation, and forming a sense of belonging in the sending countries, but they also signal a breakdown in solidarity between members of the sending countries and these emigrants. The spirit of mutuality that is typically present between them comes to be replaced by alienation and antagonism.

For all intents and purposes, therefore, refugees and stateless migrants are without a place to call home. And this situation is unjust. The responsibility of remedying this injustice, I argue, ought to rest with the relevant Western receiving countries once these migrants have managed to arrive therein and had their legal statuses verified.164 This, as Carens explained in the asylum context, is a corollary of our acceptance of the current world order, which bestows upon states exclusive sovereignty over matters that occur within their respective territories. He noted: “The arrival of the refugees implicates us directly and immediately in their fate. They will no longer be at great risks, if we do not return them.”165 In other words, the physical presence of refugees and stateless migrants who cannot safely be returned, coupled with the capacity of receiving states to offer a temporary shelter, places a moral duty on receiving societies to help these migrants relieve their plights. Specifically, these migrants should be treated by receiving societies as

162 Convention Relating to the Status of Stateless Persons, 28 September 1954, 360 UNTS 117 art 1 (entered into force 6 June 1960) [Statelessness Convention].

163 UN High Commissioner for Refugees, UNHCR Resettlement Handbook (Geneva: UNHCR, 2011) at 80-81.

164 It behooves me to emphasize that the remedial responsibility I impose on Western receiving states is premised on the assumption that refugees and stateless migrants are unable to go back to sending countries within a reasonable time. That is, sending countries in my view do owe a prior moral duty to correct the sources of threat that prompted refugees and stateless migrants to flee in the first place, such that these migrants can return home as soon as possible if they so choose.

165 Supra note 68 at 207.

204 members and be given a chance to belong, irrespective of whether ordinary residence has been obtained. As Walzer put it: “Though he is a stranger, and newly come, the rule against expulsion applies to him as if he had already made a life where he is: for there is no other place where he can make a life.”166 Indeed, many refugees and stateless migrants in Western receiving countries go on to become ordinarily resident therein.167 For my purpose, all this points to the need for these humanitarian migrants to be given a right to share in such communal provision as health care like other societal members.

The equal membership of refugees and stateless migrants in Western receiving countries, including for the purpose of determining health care entitlement, is also consistent with current international human rights norms. Pursuant to both the Convention Relating to the Status of Stateless Persons and the Convention Relating to the Status of Refugees, such humanitarian migrants who are lawfully staying in receiving societies shall be accorded “the same treatment with respect to public relief and assistance as is accorded to [receiving states’] nationals.”168 To the degree that these international legal instruments are binding on Western receiving states, they add to the acceptability of these countries’ duty to provide refugees and stateless migrants with a level of health care coverage on par with what citizens enjoy.

5.4 Injustice of Under-Inclusive Health Care Entitlement

Having laid out the standard of migrant health care entitlement that we can expect populations of Western liberal democracies to agree to, based on the prevailing notions of membership and solidarity, the remainder of this chapter will examine what I have referred to as the problem of injustice. That is, what if a Western receiving country leaves some ordinarily resident or would- be ordinarily resident migrants out of its public health care system? Based on my analysis so far, it would appear that such under-inclusion does not raise any legitimacy-related concerns. Seeing

166 Supra note 22 at 50.

167 See e.g., Jay Marlowe & Sue Elliot, “Global Trends and Refugee Settlement in New Zealand” (2014) 9 Kōtuitui 43; Louis-Jacques Dorais, “The Vietnamese in Montreal, Canada: Reflections on Intangible Capital and Immigration” (2009) 18 Asian & Pacific Migration J 231.

168 Statelessness Convention, supra note 162, art 23; Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 art 23 (entered into force 22 April 1954).

205 as the extent of health care entitlement in this situation remains within the scope of existing social solidarity, it boasts sufficient relational justification. We know why society owes these individuals a duty to help them secure health care coverage. The problems raised by an under- inclusive scheme of migrant health care are of a different nature. Specifically, I argue that when a Western receiving country’s public health care system fails to cover all its members, it violates the principles of equality and reciprocity, both of which are norms espoused by liberal democratic societies.

5.4.1 Inequality

As mentioned, a normative significance of being recognized as members is the promise of equal treatment. “Among themselves,” said Walzer, “the members are equal.”169 Every member of a collective is said to enjoy equal moral worth, which entails equal consideration and respect. No member should be subjected to “a distinction … [that is] based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”170 Violation of this principle is regarded as discriminatory.171

With both being societal members, unequal health care coverage between citizens and (would- be) ordinarily resident migrants that lacks valid justification, therefore, constitutes discrimination. As I demonstrated in Chapter 4, there is some doubt about the commonly alleged need to exclude migrants from (sub-)national health care coverage in order to reduce government spending or deter immigration fraud. But even assuming the validity of these assertions for the sake of argument, any reasons why the pursuits of cost control and fraud deterrence should lead to differential health care entitlement between citizens and (would-be) ordinarily resident migrants escape me. If the deprivation or curtailment of the latter’s health care coverage would save cost, why wouldn’t the same be true for the former? It does not appear to me that there are

169 Supra note 22 at 61.

170 Law Society British Columbia v Andrews, [1989] 1 SCR 143 at para. 37 [Andrews].

171 Ibid.

206 meaningful distinctions between these moral equals to warrant differential treatment between them. To lean on the words of the Supreme Court of Canada: “In this case, to the extent non- citizens are differently situated than citizens, it is only because the legislature has accorded them a unique legal status. In all relevant respects—sociological, economic, moral, intellectual—non- citizens are equally vital members of Canadian society and deserve tantamount concern and respect.”172

Likewise, worries about incentivizing unlawful activities such as immigration fraud are not a justifiable cause for overriding the principle of equal membership. It bears repeating that when it comes to citizens, no Western liberal democratic countries with so-called universal health care programs at present expressly rely on health care disentitlement as a method of punishing or deterring illegalities. Regarding immigration fraud specifically, I am equally unaware of any Western receiving countries that penalize citizens who aid and abet such conducts by curtailing their public health care coverage. This begs the question of why the opposite is acceptable with respect to (would be) ordinarily resident migrants. Some may contend that the differential treatment in this case is justified as it aims to target immigration-related infractions, rather than lawbreaking in general. But as I mentioned before, this simply begets a new question of why immigration offences, despite not being obviously more heinous than its non-immigration- related counterpart, should be singled out for tougher policy responses. Moreover, the provision of lesser health care coverage to (would-be) ordinarily resident migrants in the name of immigration control raises concerns about disproportionality. Whatever benefits that receiving countries hope to gain from discouraging immigration illegalities, the use of health care disentitlement as a strategy not only places (would-be) ordinarily resident migrants’ health and wellbeing in jeopardy, but it also undermines the interests that these migrants have accumulated and will continue to do so over time as societal members. Inter alia, being deprived of medically necessary care can strain people’s social ties, impair their identification with society, and hinder their participation in democratic decision-making.173 I concur with Carens’s position that by the

172 Lavoie v Canada, [2002] 1 SCR 769 at para. 44.

173 See e.g., Institute of Medicine of the National Academies, A Shared Destiny: Community Effects of Uninsurance (Washington, DC: National Academies Press, 2003) at 132-134; Ritika Goel, Gary Bloch & Paul Caulford, “Waiting for Care: Effects of Ontario’s 3-month Waiting Period for OHIP on Landed Immigrants” (2013) 59 Can Family

207 time migrants have established ordinary residence (or being granted permanent residence or recognized as refugees or stateless) in a receiving country, the moral importance of having their societal membership recognized and protected—including having their right to equal health care respected—outweighs the normative concern about how and why these migrants initially arrived and settled in the country.174

5.4.2 Lack of Reciprocity

The withholding of equal health care entitlement from (would-be) ordinarily resident migrants also conflicts with the principle of reciprocity. According to Rawls, a fair term of social cooperation demands that “all who do their part as the recognized rules require are to benefit as specified by a public and agreed-upon standard.”175 To put it simply, everyone who contributes to the production of a good should be able to enjoy such a good based on the agreed-upon rules of distribution. People are prima facie entitled to reap what they sow. Ordinarily resident migrants and those whose ordinary residence can be safely predicted, save for some extraordinary cases, provide both direct and indirect contributions that enable societies to make universal health care possible, and consequently they should not be denied the fruits of their labour.

In regard to direct contributions, (would-be) ordinarily resident migrants typically pay into their respective health care systems through taxes, premiums, and out-of-pocket expenses. Some of these migrants also provide critical human resources by working in the field of health care. In these situations, to quote Carens, “an elementary sense of reciprocity makes it clear that excluding residents from the benefits [that they have a hand in making happen] would be unjust.”176

Physician e269; Sandra Liebenberg, “Social Citizenship: A Precondition for Meaningful Democracy” (1999) 40 Agenda 59.

174 Supra note 68 at 147-151.

175 Supra note 32 at 6.

176 Supra note 68 at 99.

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Ordinarily resident migrants’ moral claim for equal health care entitlement based on reciprocity is bolstered by their involvement in social cooperation more generally. It is perhaps stating the obvious that health care as a form of communal provision requires social cooperation to be possible. Without collaborative efforts, for example, the economic system that our contemporary health care programs depend on for resources would be inconceivable. As well, without social cooperation, there can be no division of labour that allows health care providers to focus on their line of work. Moreover, without social cooperation that puts in place the necessary social and political institutions, the mechanisms needed to govern, regulate, and enforce the redistribution of health care resources will be missing. As members of society, ordinarily resident migrants’ participation in such social cooperation is implied. It is part of what qualifies them for membership. But this suggestion is also backed up by empirical evidence. Commentators have repeatedly pointed out that long-term migrants improve receiving countries’ economy, add to the social and cultural fabric of societies, and may help alleviate the demographic challenges posed by aging populations in some communities.177 These contributions give ordinarily resident migrants a right to enjoy the health care protection as a good that they have helped produce. And based on what legitimacy and justice demands, the level of health care protection they are entitled to should be the same as what receiving societies make available to their citizens.

5.5 Conclusion

In this chapter, I set out to make a case for a membership-based approach to delineating migrants’ health care entitlement in Western receiving societies. As I noted at the start of this pursuit, such a membership-based argument is not meant to be, nor should it be treated as, a stand-alone theory of a right to health care. By itself, it is no more than a plea for treating all members of a society as moral equals. As an illustration of its ancillary nature, the same membership-based justification has been advanced by theorists to support migrants’ entitlement to a range of other social rights in receiving countries, including publicly-funded education and social security benefits.178 As such, the arguments that I advance in this chapter with regard to

177 See e.g. Daniels & Ladin, supra note 136 at 62; Holger Bonin, Bernd Raffelhüschen & Jan Walliser, “Can Immigration Alleviate the Demographic Burden?” 57 (2000) FinanzArchiv 1.

178 See e.g. Carens, supra note 68 at 99.

209 health care entitlement only hold sway when the thesis of equal membership is superimposed on the normative propositions that undergird my entire dissertation—namely, the right of everyone to health care places on states a corresponding duty to ensure the accessibility of health care for those in need. Based on this premise, I argue that the country of which a person is a member should bear the primary responsibility of assuring that person’s access to necessary health care, seeing as such membership ties represent the best available source of solidarity at present that is capable of motivating ongoing, broad-based health care resource redistribution. And government measures of this sort, as a form of communal provision, ought to encompass all societal members.

With respect to the constitution of societal membership, I contend that in Western liberal democracies, citizens are members by default. However, non-citizens’ societal membership is equally possible and best indicated by their ordinary residence, which aptly approximates their affiliations, social participation, and subjugation in, as well as self-identification with, a particular community. It follows that Western receiving states ought to ensure equal health care protection between their citizens and all migrants who are ordinarily resident, along with migrants whose ordinary residence in the near future can be predicted with a reasonable degree of confidence. Any migrant health care policy of Western receiving countries that falls short of this standard is contrary to the principles of equality and reciprocity, both of which are foundational to the liberal democratic ideology.

On the one hand, this membership-based determination of migrants’ health care entitlement respects the prevailing perception of human relations. It recognizes the fellow feeling that people share with their co-residents and the significance of such interpersonal bonds in mobilizing communal provision like health care. On the other hand, the breadth of migrant health care obligations that I ascribe to Western receiving countries confronts the status quo. By lifting the veil on the membership interests that the citizenship regime is designed to protect, I stress the need for the conception of societal membership in Western receiving countries to be expanded beyond the bounds of citizenship status. In doing so, I push back against the system of social exclusion mentioned in the previous chapter, and the arbitrary and discriminatory distinction between citizens and non-citizens that it propagates. I also call attention to the gaps often found in Western countries’ migrant health care policies. As seen in Chapter 2, international migrants

210 who are granted temporary residency and those who are undocumented typically are furnished with much narrower health care coverage, if at all, when compared with citizens of Western states. My account of migrant health care entitlement holds these policies to be gravely unjust. The policy choices of Western receiving countries that render ordinarily resident migrants unable or unwilling to acquire the status of citizens does not diminish these migrants’ factual membership or their resulting moral claims for equal health care entitlement.

Some, however, have suggested that my reliance on ordinary residence as a marker for societal membership, and therefore migrants’ health care entitlement, may lead to outcomes that are questionable. Consider the following example. Let us assume that for the purpose of establishing ordinary residence in a Western receiving country, a migrant must live in the country for four consecutive years and not be absent for more than three months in total in any given year. According to this residency requirement, a seasonal migrant worker who has returned annually to the country for more than a decade to work for eight months at a time—perhaps because this is the maximum length allowable under relevant immigration rules—will fall short of being an ordinary resident and not qualify for publicly-funded health care. In contrast, an undocumented migrant who has lived in the country for four consecutive years will be able to claim health care protection. The supposed irrationality of this result, as I understand it, is two-fold. One concerns the potential unfairness of the seasonal migrant worker not being recognized as an ordinary resident despite the substantial links to the receiving society she likely has accumulated over time. And the other relates to the optics of granting health care entitlement to migrants who are in the country irregularly but not to those who have obeyed immigration laws. Neither of these complaints, in my view, is fatal to the arguments that I am making.

In regard to the first criticism, it strikes me that the seasonal migrant worker’s exclusion from health care coverage in this case has more to do with how the receiving state sets its residency rules than with any flaws inherent to the account of membership that I have put forth. What gives rise to the allegation of unfairness here is not any problem concerning the usage of ordinary residence as a proxy for membership, but the under-inclusiveness of how ordinary residence is operationalized. The receiving state’s residency requirement, it is said, should have been set lower to acknowledge the membership claims of more migrants. But complaints of this sort are unavoidable whenever a bright line is drawn for the purposes of delimiting people’s entitlement.

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There will always be someone who falls just below the established eligibility threshold, whose circumstances appear comparable to those who narrowly meet the requirement. My view is that so long as the line-drawing of ordinary residence comes within a range of reasonableness, it is still preferable to a case-by-case assessment of people’s societal belonging, which is highly discretionary and vulnerable to bias.

In comparison, I am less sympathetic to the second complaint, which objects to the possibility of certain undocumented migrants enjoying greater health care entitlement than some of their counterparts that are lawfully present in the receiving state. To the extent that the impression of unfairness in this instance stems from the discomfort with being seen as rewarding individuals who have broken the law, it is worth stressing that any differences in migrants’ health care entitlement that flow from my membership-based analysis are not rooted in migrants’ legal statuses per se, but the degree of their attachment to a receiving country. That is, the undocumented migrant in my example is not granted health care coverage because she is in the receiving country unlawfully, but because she has built a sufficiently strong claim for membership over the years. I reiterate my observation in the preceding chapter that no Western liberal democracies currently rely on health care disentitlement as a way to punish citizens who have been criminally convicted. So, why should undocumented migrants who are ordinarily resident in these states, and therefore members akin to their citizen counterparts, be denied health care solely for having contravened immigration laws? I agree with Carens that as undocumented migrants’ membership ties with receiving societies amplify over time, “the circumstances of

[their] entry grow less important” and “[e]ventually, they become altogether irrelevant.”179 Given this, to withhold health care benefits from ordinarily resident undocumented migrants in the name of immigration control appears disproportionate to the risks of bodily harm facing these migrants as a result of their being medically uninsured. As such, it is by design that the account of ordinary residence that I adopt to embody migrants’ membership-related interests does not consider people’s immigration statuses in receiving countries.

179 Supra note 68 at 150.

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Before leaving this chapter, I am compelled to repeat that my emphasis on societal membership as a determinant of migrants’ health care entitlement is premised on the observation that the bonds between co-residents constitute the most appropriate source of solidarity currently available to inspire and sustain resource redistribution that is (sub-)national in scope. Unlike some scholars, I do not rule out the possibility that one day, with much work, a solidaristic relationship may emerge on a broader scale, such as between individuals worldwide on the basis of our shared humanity. If that happens, the importance of societal membership in our delineation of migrants’ health care entitlement will likely diminish. But even before then, I do not suggest that Western receiving countries owe zero health care obligations to non-member migrants who are within their territories. Although non-member migrants may not be entitled to the same degree of health care coverage as what citizens receive, their somewhat extended presence in Western countries separates them from mere tourists and underpins their moral claim to a basic level of health care protection from receiving societies. It is to these non-membership- based health care duties that I will now turn.

Chapter 6 Beyond Membership: Revisiting the Moral Significance of “Being Here” for Migrant Health Care 6.1 Introduction

Let me briefly retrace the steps I have taken so far in the analysis of Western receiving countries’ migrant health care responsibilities. I begin with a set of propositions about health care in general. I posit that it is both unhumanitarian and unjust when people are left without necessary health care, and market mechanisms alone are insufficient to correct this normative problem. Governments, with both the authority and infrastructure needed to harness and allocate health care resources, are therefore under an ethical duty to intervene and facilitate the pursuit of adequate health care for all. And this moral imperative is buttressed by states’ obligations under international law to help individuals progressively realize their right to timely and appropriate health care. However, insofar as such government initiatives involve the exercise of coercive power—whether it be the curtailment of free markets or compelled redistribution of resources— they must be justified on a relational basis. That is, people who are required to sacrifice their interests for others’ attainment of health care security ought to see themselves as being responsible for the wellbeing of the beneficiaries. To that end, participants in a publicly-financed or -administered health care program must be joined by a sense of solidarity. At this moment, given the absence of a genuinely solidaristic relationship between all humans, I submit that the feeling of togetherness that binds members of a (sub-)national community represents the form of solidarity most capable of sustaining, thus justifying, the redistributive demand of modern-day universal health care regimes. So long as this remains the case, health care entitlement is most appropriately understood as a product of solidaristic collaboration between members of a society. It follows that the scope of a state’s health care obligations should roughly be consistent with the span of its membership. Everyone who constitutes member of a society must be afforded a uniform level of health care protection in light of the principles of equality and reciprocity that guide the interactions between members. Conversely, if a society bestows health care benefits indiscriminately on both members and non-members, such provision runs the risk of being dismissed by the populace as illegitimate.

213 214

As Western liberal democracies become more pluralistic, I argue that membership therein is now best defined by people’s belonging to pertinent societies on the bases of their affiliations, social engagement, self-identification, and/or subjection to state coercion. Societal members in this sense, I contend, encompasses not only individuals who are legally citizens but also non-citizens who are ordinarily resident in Western receiving countries, as well as those whose establishment of ordinary residence in these countries can be confidently foretold. Specifically, non-citizens of the former sort include migrants of any legal statuses that have made a receiving country their home and have resided in it for an extended duration, whereas the latter consists of migrants who are granted permanent residency in a receiving country and refugees and stateless persons that are territorially present. Having settled in receiving societies, these migrants are integrated into these societies’ social and economic fabric, which in turn shapes their identities and life chances. They have an interest in having such societal belonging recognized and protected. Accordingly, they must be guaranteed a level of health care coverage that is adequate and on par with what is made available by Western receiving countries to their citizens.

In comparison, communitarian ethics dictates that migrants who are not, or at least not yet, members of receiving countries have a weaker claim on these societies’ health care resources. By non-member migrants, I have in mind international migrants whose residence in a receiving country is truly transitory in nature, as exemplified by temporary foreign workers and international students, and also newcomers whose ordinary residence in a receiving society cannot be predicted with a degree of certainty, such as asylum seekers and undocumented migrants who arrived relatively recently. As their relationship with other residents of the receiving society does not amount to one of solidarity, the inclusion of these non-members in that society’s general, ongoing health care resource redistribution raises concerns about legitimacy. That is, unless some other relational justification can be found, members of receiving societies will likely see themselves as too remotely situated to be held responsible for non- member migrants’ health care needs. Instead, from a membership-based standpoint, the duty of helping these migrants secure adequate health care prima facie lies with sending countries— namely, countries of these migrants’ nationality or former habitual residence. Typically, individuals’ membership ties to sending countries do not vanish immediately upon their relocation. Save in exceptional circumstances such as those facing refugees and stateless people, sending countries usually go on to exert considerable influence on migrants’ social affiliations,

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identity, autonomy, and life opportunities for some time after their departure.1 Until migrants establish membership in receiving societies, such links to sending countries arguably serve as the strongest source of solidarity they experience. By extension, as Norman Daniels and Keren Ladin advanced, sending countries should “remain the primary bearers of duties” when it comes to satisfying non-member migrants’ right to health.2

Does this mean that receiving societies are entirely free of health care obligations toward non- members who are within their territories? I think not. Even staunchly communitarian theorists such as Michael Walzer acknowledged that “in certain circumstances, strangers … might be entitled to our hospitality, assistance, and good will.”3 Taking my cue from this concession, I turn my mind in the present chapter to these special circumstances where non-member migrants and other residents of Western receiving societies, despite not being co-members, are sufficiently connected to justify the participation of these migrants in the communal health care resource- sharing. Particularly, drawing from David Miller’s theory on the distribution of remedial responsibilities,4 I aim to grapple with Western receiving countries’ health care obligations vis-à- vis territorially-present non-member migrants by invoking the principles of causation and remedial capacities. In general terms, the former requires an agent to take corrective measures when it has contributed to someone else’s plight, while the latter makes the same demand when an agent happens to be the only one capable of meeting another person’s urgent needs. Applying these principles to the inquiry at hand, I argue that they both point to non-member migrants being entitled to a basic level of health care while in Western receiving countries.

I shall develop my position as follows. First, in Section 6.2, I explore non-member migrants’ health care entitlement from the perspective of causation. I demonstrate that, as the place of non-

1 See e.g., Ted Mouw et al, “Binational Social Networks and Assimilation: A Test of the Importance of Transnationalism” (2014) 61:3 Soc Problems 329; Laura Hammond, “Somali Transnational Activism and Integration in the UK: Mutually Supporting Strategies,” (2013) 39:6 J Ethnic & Migration Studies 1001; Patricia Landolt, “Salvadoran Economic Transnationalism: Embedded Strategies for Household Maintenance, Immigrant Incorporation, and Entrepreneurial Expansion,” (2001) 1:3 Global Networks 217.

2 “Immigration and Access to Health Care” in John D Arras, Elizabeth Fenton & Rebecca Kukla, eds, The Routledge Companion to Bioethics (New York: Routledge, 2015) 56 at 61.

3 Spheres of Justice: A Defence of Pluralism and Equality (New York: Basic Books, 1983) at 32-33.

4 “Distributing Responsibilities,” (2001) 9 J Political Philosophy 453.

216 member migrants’ usual residence, receiving countries play a significant role in setting the conditions in which these migrants go about their daily lives. Given that such conditions may adversely affect one’s health, the causation principle imposes on Western receiving societies, at a minimum, a duty to help non-member migrants secure primary care so as to enable their proper monitoring and management of health.

Then, in Section 6.3, I dive into the relationship between a state’s remedial capacity and its health care responsibility. Given non-member migrants’ territorial presence, I suggest that receiving countries will most likely be the only agents with a realistic chance of attending to these migrants’ health care needs in the event of a medical emergency. This unique capacity to help entails a moral obligation to do so. Thus, besides primary care, Western receiving societies ought to ensure non-member migrants in their midst have access to medical treatment that cannot be postponed, including emergency care and reproductive and maternal care. However, I do not think the capacity principle in and of itself goes so far as to necessitate receiving states to absorb all the expenses of such undelayable care. It is permissible, especially when faced with bona fide resource constraint, for service providers in Western receiving countries to recover at least some of these health care costs from non-member migrants once treatment has been performed. But it would be unethical if service providers exploit these migrant patients’ sense of urgency and charge them at a rate higher than the publicly-regulated price.

Having delimited non-member migrants’ health care entitlement in Western receiving societies, in the concluding section of this chapter, i.e. Section 6.4, I address the foreseeable ramifications of ascribing sending countries the primacy in safeguarding these migrants’ health care security. As much as I stand by my division of health care obligations between sending and receiving states in light of the moral significance of societal membership, it seems plain that some lower- and middle-income sending countries (“LMICs”) will find themselves ill-equipped to discharge their prescribed responsibilities. They may lack the financial means or governance structures necessary to attend to the health care needs of their expatriates. Mindful of this concern, I argue that so far as LMICs’ lesser remedial capacities are a result of inequitable distribution of resources globally, it is incumbent upon Western states—a key architect of the current world order—to assist them with fulfilling their health care duties.

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6.2 Health Care for Non-Member Migrants Based on the Causation Principle

6.2.1 Miller’s Connection Theory

Let me begin by examining the circumstances in which people who are not members of a society may nevertheless be so tightly associated that we can reasonably expect them to accept remedial responsibilities for one another. To that end, David Miller’s connection theory serves as a useful point of departure.5 Miller observed that our assessment of who should bear the responsibility of rectifying a wrong or a deprivation is typically guided by three instincts. Other than basing our decisions on membership ties, we also commonly assign remedial responsibilities to people whose action or inaction has led to the wrong or deprivation in question, or people who are most capable of providing help in a particular instance.6

Although each of these principles offers helpful guidance on how remedial responsibilities should be allocated in some contexts, none according to Miller can be used by itself to ascertain the appropriate duty bearers in all situations. A single-minded search for casual agents will come up short when no one can be clearly identified as contributors to a wrong or deprivation, or if those who have played a part in bringing about a wrong or deprivation have valid justification for doing so.7 Exclusive reliance on the principle of capacity or membership for parsing remedial responsibilities, too, can be problematic. Seeing as both principles pay little attention to relevant facts from the past—such as how a wrong or deprivation originates and why one becomes better positioned than others to resolve it—they may end up letting certain blameworthy parties off the hook while imputing a disproportionately heavy remedial burden on parties that are relatively weakly linked to the wrong or deprivation at issue.8 As such, rather than settling on one of these principles, Miller advocated for a pluralist approach that “ask[s] us to balance or weigh the

5 Ibid.

6 Ibid. at 455-464.

7 Ibid. at 456-458.

8 Ibid. at 466.

218 various principles against one another” in order to deduce, and in turn impose remedial duty on, the party that is the most connected to a wrong or deprivation in any given case.9 He explained:

Our overriding interest is to identify an agent who can remedy the deprivation or suffering that concerns us, and in pursuit of that aim we fix on whoever is linked to [the injured person, P,] according to one of the [remedial principles], about which there is widespread agreement. Where two or more of the principles apply, the theory tells us to look at the strength of the various connections. Thus if A is weakly linked to P by virtue of [causation], whereas B is strongly linked to P by virtue of capacity

…, the theory instructs us to hold B remedially responsible.10

In the event that the relationships between various potential duty bearers and an injured person appear to be of similar strength, Miller theorized that remedial responsibilities should be divided among all these connected parties so far as it is practical.11

Applying Miller’s proposition to the health care context would suggest that the scope of a state’s health care responsibilities need not always be confined to its membership. The principles of causation and capacity can sometimes compel societies to attend to the health care needs of certain non-members. Given this, my membership-based analysis up until now needs some clarification. As I have argued, at present, public health care benefits are best characterized as a form of communal provision. This being so, our moral instinct typically points us to societal membership as the most relevant human connection for determining which community ought to shoulder the responsibility for meeting a person’s health care needs, hence my emphasis thereon as a marker of migrants’ health care entitlement in Western receiving countries. If we were to identify the bearers of health care duties in relation to member migrants from the perspective of causation or remedial capacity, my sense is that we would have more or less reached the same conclusion. As I will elaborate below, the attribution of health care duties to a state on account of causation or capacity rests heavily on the fact that the person in need of health care services is

9 Ibid. at 465.

10 Ibid. at 471.

11 Ibid.

219 resident, or at least physically present, in the said state. These factual circumstances arguably also describe the realities of migrants who are members of, and by definition ordinarily resident in, a Western receiving country. In other words, regardless of which of the three principles is employed, a duty is placed on Western receiving societies to ensure the health care security of migrants who are their members. And this explains why causation and remedial capacity have so far taken a back seat in my analysis.

However, no such convergence of the three principles exists when ascertaining Western receiving countries’ health care obligations toward migrants who are not members thereof. On the one hand, a vibrant body of literature on the subject of transnationalism illustrates that migrants’ connection with their countries of nationality or former habitual residence often persists at least for some time after their departure.12 Thus, before migrants develop comparable communal ties to receiving societies, the membership principle indicates that the responsibility of helping them secure necessary health care should be borne by sending countries. On the other hand, receiving societies are the place of usual residence for all migrants irrespective of their membership statuses. This, when viewed through the lens of causation or capacity, sufficiently links non-member migrants to receiving societies and warrants some level of health care protection for the former from the latter. When weighing these duelling considerations, I am not convinced that a mere “appeal to shared moral intuitions” can yield a definitive answer regarding which principles must take precedent.13 In situations like this, as Miller advised, it is more appropriate to have health care responsibilities divided between the relevant duty bearers. Accordingly, I argue that while sending countries maintain a general health care obligation toward their members even when they are abroad, Western receiving countries also must attend to the basic health care needs of non-member migrants so long as they are territorially present, including ensuring their access to primary care and medical treatment that cannot be deferred. In the remainder of this section, I aim to expand on how and the extent to which the principle of causation underpins non-member migrants’ health care entitlement in Western receiving

12 See e.g. Thomas Soehl & Roger Waldinger, “Making the Connection: Latino Immigrants and Their Cross-Border Ties,” (2010) 33:9 Ethnic & Racial Studies 1489.

13 Miller, supra note 4 at 471.

220 societies. I will tackle the principle of capacity and the health care obligations that it entails in Section 6.3.

6.2.2 Applying the Causation Principle in Health Care Context

Put simply, what I term the principle of causation encapsulates our impulse to hold people accountable for a wrong or a deprivation that they have played a role in bringing about. Or, to borrow the words of Patricia Illingworth and Wendy Parmet, “there are moral responsibilities to right the harms to which one has contributed.”14 Admittedly, the notion of causation does not lend itself to just one interpretation. On some occasions, our moral instinct seems satisfied with holding a party remedially responsible solely because it is among the readily identifiable authors of the concerned state of affairs, regardless of the blameworthiness of the party’s conduct.15 Suppose that I tripped and fell, knocking down the person in front of me and injuring her in the process. It strikes me as somewhat intuitive that I bear some obligation to come to my victim’s aid, even if my fall was a genuine accident.16 But more frequently, as Miller observed, we appear more inclined to attribute responsibility to an agent if its action or inaction, besides precipitating a wrong or a deprivation, suffers from some moral defect.17 And for that reason, when assigning remedial duty in light of causation, we often find ourselves asking “whether the [causal] agent intended the outcome, whether he foresaw it, whether his behaviour violated some standard of reasonable care, and so forth.”18 It is this morally laden—and in some ways narrower and presumably less contentious—notion of causation that I adopt here for the purpose of deciphering Western receiving countries’ health care obligations.

The use of the causation principle as I understand it to identify appropriate duty bearers has been a well-accepted practice in the health care context, albeit at the individual rather than population level. For instance, pursuant to the common law tort of negligence, a party, including a

14 The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity (New York: New York University Press, 2017) 147.

15 Miller, supra note 4 at 458.

16 Ibid.

17 Ibid. at 458-459.

18 Ibid. at 456.

221 government actor, may be found liable for some damage that they have caused as a result of failing to adhere to certain legally required standard of care when the occurrence of such damage should have been foreseeable.19 In cases of personal injury, once liability is established, a tortfeasor is regularly ordered to compensate the injured party for medical expenses already incurred, as well as any cost of future care “reasonably necessary … to promote [one’s] mental and physical health.”20 Notably, the legal responsibility of a tortfeasor remains even if there are other factors outside of their control that have also contributed to the injury in question. It is sufficient in the eyes of the law that the tortfeasor bears the remedial responsibility for being “a cause of the harm.”21 The fact that there could be multiple tortfeasors in relation to a particular injury simply means that liability may be apportioned among these parties.22

In my view, a similar logic of causation may reasonably be transposed into the population health setting to underpin Western receiving states’ health care responsibilities toward non-member migrants that are within their territories and whose health they have harmed. Specifically, I argue that Western receiving societies bear an ongoing duty to care for the health of territorially- present non-member migrants insofar as they have unjustifiably exposed, and continue to expose, these migrants to a set of unhealthy living conditions.

Let me elaborate. Generally speaking, the circumstances surrounding people’s day-to-day life is to a large measure shaped by the institutions and environment of their place of residence. As Juha Mikkonen and Dennis Raphael observed, “in most cases [our] living conditions are … imposed upon us by the quality of the communities, housing situations, our work setting, health and social service agencies, and educational institutions with which we interact.”23 With respect to migrants in Western receiving countries, especially non-member migrants, one’s freedom to carry out activities of daily living and the conditions under which they can do so are further

19 Ekkebus v Lauinger (1994), 22 CCLT (2d) 148 at para. 36.

20 Milina v Bartsch (1985), 49 BCLR (2d) 33 at para. 172.

21 Athey v Leonati, [1996] 3 SCR 458 at para. 19 [emphasis added].

22 Parkland (Country) No. 31 v Stetar, [1975] 2 SCR 884.

23 Social Determinants of Health: The Canadian Facts (Toronto: York University School of Health Policy and Management, 2010) at 7.

222 dictated by a system of rules and bureaucracy that regulates, inter alia, how long they can stay, where they must reside, whether they are free to move and, if so, whether there is any reporting requirement, the types of activities they can engage in, and the options available to them when their residence permits expire. In turn, these “conditions in which people are born, grow, work, live, and age” have proven to be highly influential on human health.24 Unfortunately, when it comes to non-member migrants, the effects of such health determinants tend to be more deleterious than salutary due to the social exclusion they face in receiving countries. And this, I posit, gives rise to a responsibility on the part of Western receiving societies to attend to the basic health care needs of territorially-present non-member migrants on the account of causation.

To illustrate my point, let us consider a situation where the living conditions of non-member migrants are closely governed by Western receiving societies. Every year, thousands of migrants, particularly non-member migrants such as undocumented newcomers and asylum seekers, are detained in Western receiving countries for immigration-related purposes. In the U.S. alone, an average of more than 42,000 migrants per day were detained by Immigration and Customs

Enforcement in 2018, a dramatic increase from 2,370 in 1973.25 Figures from other countries, although less staggering, also suggest the prevalence of this practice. For instance, during the 2017-2018 fiscal year, 8,355 migrants—151 of whom minors—were placed under immigration detention in Canada.26 In Australia, the number of individuals housed in immigration detention facilities tallied 1,270 as of the end of May 2019, having reached over 10,200 nearly six years

24 World Health Organization, The Economics of Social Determinants of Health and Health Inequalities: A Resource Book (Luxembourg: World Health Organization, 2013) at 6.

25 César Cuauhtémoc García Hernández, Migrating to Prison: America’s Obsession with Locking Up Immigrants (New York: The New Press, 2019) at 10.

26 “Annual Detention Statistics—2012-2018” (25 October 2018), online: Canada Border Services Agency .

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before.27 What’s more, in some countries, migrants face the possibility of indefinite detention, and indeed many find themselves detained on a prolonged basis.28

While being detained, migrants have little choice but to put up with the environment of the holding facilities. When these facilities become plagued by overcrowding and poor sanitation, as they have sometimes been reported to do, they can have health-negating impact on migrants.29 Even when the living conditions inside detention centres are not manifestly deplorable, however, research has shown that the loss of control over one’s life while under detention and the resulting experience of powerlessness, uncertainty, isolation, and boredom can in and of themselves be detrimental to migrants’ health.30 When compared with their non-detained counterparts, migrants in detention have been found to exhibit higher rates of mental illnesses including depression, post-traumatic stress, and anxiety, with the severity of these conditions increasing over the course of detention.31 At the same time, migrant detainees’ curtailed autonomy also means that it would be hard-pressed for them to adopt health-promoting strategies and to secure necessary preventive and curative health care services, if detention facilities do not make this possible. In short, detention acts as a determinant of migrants’ health.

Given these harmful effects, international law and treaty bodies have repeatedly urged countries to limit the use of immigration detention to cases where doing so is “reasonable, necessary and

27 Austl, Commonwealth, Department of Home Affairs, Immigration Detention and Community Statistics Summary, 31 May 2019, online: ; Austl, Commonwealth, Department of Home Affairs, Immigration Detention Statistics Summary, 31 July 2013, online: .

28 See e.g. Brendan Kennedy, “Caged by Canada”, Toronto Star (18 March 2017) A1; Melanie Griffiths, “Living with Uncertainty: Indefinite Immigration Detention” (2013) J Leg Anthropology 263.

29 See e.g. Leonidas K Cheliotis, “Behind the Veil of Philoxenia: The Politics of Immigration Detention in Greece” (2013) 10:6 European J Criminology 725; Michael Welch & Liza Schuster, “Detention of Asylum Seekers in the US, UK, France, Germany, and Italy: A Critical View of the Globalizing Culture of Control” (2005) 5:4 Criminal Justice 331.

30 See e.g. Janet Cleveland et al, “Symbolic Violence and Disempowerment as Factors in the Adverse Impact of Immigration Detention on Adult Asylum Seekers’ Mental Health” (2018) 63 Intl J Public Health 1001; Sarah Thurnbull, “‘Stuck in the Middle’: Waiting and Uncertainty in Immigration Detention” (2016) 25:1 Time & Society 61.

31 See e.g. M von Werthern et al, “The Impact of Immigration Detention on Mental Health: A Systematic Review” (2018) 18 BMC Psychiatry 382; Katy Robjant, Rita Hassan & Cornelius Katona, “Mental Health Implications of Detaining Asylum Seekers: Systematic Review” (2009) 194 British J Psychiatry 306.

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proportionate in light of the specific circumstances.”32 Measured against such a standard, the routine and at times prolonged subjection of non-member migrants to detention in Western receiving countries is difficult to justify. Rather than an absolute necessity, immigration detention, as Michael Welch and Liza Schuster described, is emblematic of the deliberate criminalization and exclusion of “others” by mainstream societies that are preoccupied with “an expanding culture of control.”33 This, along with the foreseeability of the negative health consequences of detention, underscores the moral responsibility of Western receiving countries as a party that materially contributes to the health risks encountered by non-member migrants. According to the causation principle, Western receiving societies bear a duty to right this wrong, including attending to these non-member migrants’ health care needs.

Even outside the detention setting, Western receiving societies play a significant role as well in shaping non-member migrants’ living conditions in ways that put these migrants at substantial risk of ill health. In particular, without secure legal statuses, a state of precariousness permeates the lives of non-member migrants in Western receiving countries. Take asylum seekers as an example. As John van Kooy and Dina Bowman observed in the Australian context, these migrants “experience pervasive uncertainty and insecurity because their immigration status is vulnerable to sudden changes.”34 Not only does such precariousness underlie their everyday lives and hold them back from making long-term plans, but it is also carried over into their work. The unpredictability associated with asylum seekers’ legal presence means that they face considerable difficulty breaking into the job market in receiving countries; and when they do manage to find employment, they are typically relegated to jobs that are short-term, unstable, or exploitative, where they are vulnerable to encountering mistreatment or abuse.35 This

“compounded precarity,”36 literature shows, closely parallels the lived realities of other non-

32 Mariette Grange & Izabella Majcher, “When Is Immigration Detention Lawful? The Monitoring Practices of UN Human Rights Mechanisms” (2017) Global Detention Project Working Paper No 21.

33 Supra note 29 at 335.

34 “‘Surrounded with So Much Uncertainty’: Asylum Seekers and Manufactured Precarity” (2019) 45:5 J Ethnic & Migration Studies 693 at 698.

35 Ibid. at 699-702.

36 Ibid. at 698.

225 member migrants in Western receiving countries, including undocumented newcomers and temporary migrants. Whether it is by instilling fear of deportation or by making one dependent on third parties such as employers and recruiters to maintain, renew, or improve their immigration statuses, the conditionality imposed by Western receiving societies on these migrants’ residence is known to be disempowering.37 This again renders undocumented newcomers and temporary migrants vulnerable to exploitation both in and out of work.38

The fact that non-member migrants must confront such precariousness on a regular basis can take a toll on their health. Much like the experiences of their counterparts in detention, the persistent feeling of uncertainty and hopelessness facing many non-member migrants constitutes a mental health stressor that puts these migrants at risk of developing depression, anxiety, and substance use disorder, among others.39 Furthermore, in part because of the difficulty they run into with job search and their relatively limited entitlement to government assistance, a good number of non-member migrants in Western receiving countries struggle with low-income, food insecurity, and inadequate housing.40 Such deprivation endangers people’s health and even life.41

37 See e.g. Elizabeth Adranda & Elizabeth Vaquera, “Racism, the Immigration Enforcement Regime, and the Implications for Racial Inequality in the Lives of Undocumented Young Adults” (2015) 1:1 Current (& Future) Theoretical Debates in Sociology of Race & Ethnicity 88; Fay Faraday, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (Toronto: Metcalf Foundation, 2012); Ping-Chun Hsiung & Katherine Nichol, “Policies on and Experience of Foreign Domestic Workers in Canada” (2010) 4:9 Sociology Compass 766.

38 Alice Bloch, “Living in Fear: Rejected Asylum Seekers Living as Irregular Migrants in England” (2014) 40:10 J Ethnic & Migration Studies 1507; Jamie Baxter, “Precarious Pathways: Evaluating the Provincial Nominee Programs in Canada” (6 July 2010), online: Law Commission of Ontario .

39 See e.g. Roberto G Gonzales, Carola Suárez-Orozco & Maria Cecilia Dedios-Sanguineti, “No Place to Belong: Contextualizing Concepts of Mental Health Among Undocumented Immigrant Youth in the United States” (2013) 57:8 American Behavioral Scientist 1174; Lilian Magalhaes, Christine Carrasco & Denise Gastaldo, “Undocumented Migrants in Canada: A Scope Literature Review on Health, Access to Services, and Working Conditions” (2010) 12 J Immigrant & Minority Health 132; Debbie C Hocking, Gerard Kennedy & Suresh Sundram, “Mental Disorders in Asylum Seekers: The Role of the Refugee Determination Process and Employment” (2015) 203:1 J Nervous & Mental Disease 28.

40 See e.g. Bloch, supra note 38; Craig Hadley et al, “Hunger and Health Among Undocumented Mexican Migrants in a US Urban Area” (2008) 11:2 Public Health Nutrition 151; Priya Kissoon, “From Persecution to Destitution: A Snapshot of Asylum Seekers’ Housing and Settlement Experiences in Canada and the United Kingdom” (2010) 8:1 J Immigrant & Refugee Studies 4; Moira J Calder et al, “International Students Attending Canadian Universities: Their Experiences with Housing, Finances, and Other Issues” (2016) 46:2 Can J Higher Education 92.

41 See e.g. Peter Katona & Judit Katona-Apte, “The Interaction between Nutrition and Infection” (2008) 46:10 Clinical Infectious Diseases 1582; Marc Marí-Dell’Olmo et al, “Housing Policies and Health Inequalities” (2017) 47:2 Intl J Health Services 207.

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In fact, the very process of having to scramble for these life essentials has been found to expose people to an elevated degree of stress,42 as well as greater likelihood of acquiring unhealthy coping strategies.43 What’s more, for those non-member migrants who are employed, the often precarious nature of their jobs represents yet another potential cause of ill health. They tend to be concentrated in dangerous industries such as agriculture and construction, they are regularly subjected to unsafe working conditions, and occupational health and safety programs in receiving countries do not always account for their language barriers.44 As a result, studies from several Western countries reveal that temporary migrant workers have an elevated rate of workplace-related injuries or illnesses when compared with local workers.45 Insidiously, non- member migrants’ precarious legal status also deters them from speaking out against abusive or exploitative employers, which effectively traps them in a state of health-damaging insecurity.46

All things considered, for a sizable number of non-member migrants, the circumstances presently surrounding their everyday lives in Western receiving countries have an injurious effect on their health. And a key source of this health threat is the state-manufactured precariousness—in the form of incessant push for immigration control and restricted access to securer legal statuses— that pervades virtually all aspects of non-member migrants’ lives. Thus, pursuant to the causation principle, Western receiving countries owe an ethical duty to care for these non-member migrants, whose health they have jeopardized.

42 Dennis Raphael, “Social Structure, Living Conditions, and Health” in Dennis Raphael, ed, Social Determinants of Health, 2nd ed (Toronto: Canadian Scholars’ Press, 2009) 20 at 26-27.

43 See e.g. Lisa Rosenthal et al, “The Importance of Full-Time Work for Urban Adults’ Mental and Physical Health” (2012) 75:9 Soc Science & Medicine 1692.

44 Kerry Preibisch & Gerardo Otero, “Does Citizenship Status Matter in Canadian Agriculture? Workplace Health and Safety for Migrant and Immigrant Laborers” (2014) 79 Rural Sociology 174; Malcolm Sargeant & Eric Tucker, “Layers of Vulnerability in Occupational Health and Safety for Migrant Workers: Case Studies from Canada and the U.K.” (2009) 7 Policy & Practice in Health & Safety 51.

45 See e.g. Basak Yanar, Agnieszka Kosny & Peter M Smith, “Occupational Health and Safety Vulnerability of Recent Immigrants and Refugees” (2018) 15:9 Intl J Environmental Research & Public Health 2004 ; Kerry Preibisch & Jenna Hennebry, “Temporary Migration, Chronic Effects: The Health of International Migrant Workers in Canada” (2011) 183 CMAJ 1033.

46 See e.g. Canada, Parliamentary Information and Research Service, “Temporary Foreign Workers”, by Melissa Pang, Publication No 2013-11-E (Ottawa: Library of Parliament, 2013) at 8-9; Margaret L Satterthwaite, “Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrant Workers” (2005) 8 Yale Human Rts & Dev LJ 1 at 47-48.

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But, what is the precise content of this causation-based health care responsibility? I argue that, at a minimum, Western receiving societies must ensure non-member migrants who are in their midst have proper coverage for primary care. According to one of the often-quoted definitions, primary care concerns “first-contact, continuous, comprehensive, and coordinated care provided to populations undifferentiated by gender, disease, or organ system.”47 Or, as some have put it more crudely, primary care consists of “the ‘family doctor-type’ services provided to individuals.”48 Essentially, I have in mind a range of generalist health care services typically delivered in a family- or community-oriented setting that seeks to maintain the health of individuals using a wholistic approach involving health promotion, disease prevention, and diagnosis and treatment of common illnesses. Usually the first point of entry into Western receiving countries’ health care systems, having access to primary care is important for early detection and treatment of diseases. The ongoing relationship between patients and their primary care providers also facilitates the management of chronic conditions and the follow-up care after treatment. Moreover, the expressed emphasis of primary care on disease prevention helps reduce the risks of ill health in the first place.49 In light of these functions of primary care, I suggest that it is reasonable for us to expect Western receiving countries to furnish territorially-present non- member migrants with coverage thereof. Doing so would allow non-member migrants to receive medical attention for their basic health care needs. And so long as they continue to be subjected to negative health determinants in Western receiving societies, being entitled to primary care would enable them to better manage these risks by regularly monitoring their health and undertaking appropriate preventive measures.

6.2.3 Outer Boundaries of the Causation Principle in Distributing Health Care Responsibilities

In the foregoing discussion, I have purposely confined myself to identifying the minimum health care responsibility that Western receiving societies owe to non-member migrants. Implied in this

47 Barbara Starfield, “Is Primary Care Essential?” (1994) 344 Lancet 1129 at 1129.

48 Laura K Muldoon, Willian E Hogg & Miriam Levitt, “Primary Care (PC) and Primary Health Care (PHC): What is the Difference?” (2006) 97:5 Can J Public Health 409 at 410.

49 Barbara Starfield, Leiyu Shi & James Macinko, “Contribution of Primary Care to Health Systems and Health” (2005) 83:3 Milbank Q 457.

228 choice is a recognition that the causation principle may sometimes demand these societies to do more. For example, if a detained non-member migrant sustained an injury as a direct result of a border officer’s misconduct, I think most people would agree that the pertinent receiving society, being the sole cause of the migrant’s bodily damage, should be held responsible for meeting all the related treatment needs even if they go beyond the realm of primary care. Some scholars, however, have taken the logic of causation still further to bestow on non-member migrants (and presumably some genuine tourists as well) a level of health care entitlement seemingly comparable to what members of Western receiving countries receive. I shall consider two arguments of this kind in this subsection. On the one hand, such application of the causation principle reinforces my claim that contribution to the genesis of migrants’ ill health is relevant to our delineation of Western receiving states’ health care responsibilities. On the other hand, insofar as these more liberal interpretations of the causation principle effectively turn a blind eye to the moral significance of societal membership, I argue that they are incompatible with the current nature of health care entitlement as a form of communal provision. So long as the solidarity that gives rise to health care resource redistribution remains anchored in societal membership, the notion of causation, in my view, should not be stretched so far that it would entirely usurp the communitarian ethics in the allocation of health care responsibilities.

6.2.3.1 Denial of Health Care as a Cause of Harm

One way that the principle of causation has been invoked to press for non-member migrants’ general health care entitlement in receiving countries is by characterizing non-provision of health care coverage as per se a source of harm that entails remedial responsibilities. Consider the

Canadian case of SP v Ontario Health Insurance Plan as an example.50 In that case, an HIV- positive newcomer who was in Canada on a temporary resident permit unsuccessfully challenged

50 (19 August 1999), 5399E (OHSARB). Notably, my use of this case as an example here should not be taken as my agreement with the case’s outcome. Contrary to the administrative tribunal’s ruling, I think the claimant, SP, had a solid moral claim, if not a legal one, for health care entitlement. For one, when SP’s request for health care coverage was initially denied by government, she had been living in Canada for approximately three years. Her husband and her two children are all Canadian citizens. And she would have been granted permanent resident status in Canada had she not been deemed medically inadmissible as a result of her HIV diagnosis. Taking all these facts into account, I think a strong case can be made that SP had sufficient membership ties to Canada and should have therefore been granted health care entitlement equal to what Canadian citizens would receive. As such, I am largely sympathetic to SP’s cause. What I quarrel with here is simply how the causation principle was employed in this case to support her claim.

229 the government’s decision to exclude her from publicly-funded health care. Among other things, she claimed that “the denial of access to appropriate medical care significantly threaten[ed] [her] bodily security …, to such an extent that it may cost her life.”51 And this bodily harm, she alleged, amounted to an unjustifiable violation of her constitutional rights that required remedy. Effectively, the suggestion here was that whenever a state decides against extending health care coverage to a person, say, because the person is not yet a member thereof, the refusal could by itself ground the person’s health care entitlement if the person is left sufficiently at risk of ill health as a result. Taken to its logical conclusion, this would mean that Western receiving societies’ health care obligations are almost triggered on demand. Presumably, anyone who needs health care and is territorially present, including tourists, would receive publicly-funded health care if they apply for it; even a negative response from decision-makers would still lead to an entitlement. Not to mention, the content of this entitlement, to the extent that it must ensure people’s health care security is properly safeguarded, may well go beyond primary care.

Such conceptualization of health care disentitlement as state-imposed harm strikes me as problematic for at least two reasons. Foremost, seeing as this usage of the causation principle would theoretically underpin the health care entitlement for members and non-members alike, thus leaving virtually no role for social solidarity to play in the delineation of a society’s health care obligations, it is vulnerable to the same type of anti-cosmopolitan criticisms mentioned in the previous chapter. That is, in a world where health care entitlement is largely seen as a form of communal provision and where panhuman solidarity remains more an aspiration than reality, attributing health care duties to a society in a way that completely disregards societal membership “will lose contact entirely with the beliefs of the people [it] seek[s] to address.”52 This is all the more so when the stipulated health care obligations are supposed to extend equally to tourists, who are in no way receiving societies’ residents and whose relational ties with the populace of these societies are usually insubstantial.

Moreover, using the causation principle in this way arguably places too great of a remedial burden on Western receiving countries. It seems to me that insofar as non-member migrants (and

51 Ibid. at 38.

52 David Miller, “In Defence of Nationality” (1993) 10 J Applied Philosophy 3 at 14.

230 tourists) are excluded by both sending and receiving societies from their respective public health care programs, any bodily harm sustained because of such exclusion should be attributed to these societies alike. As Miller noted, “if several agents together caused [an injured person’s] condition, then remedial responsibility should be distributed in proportion to causal responsibility.”53 While there is likely room for debate about the exact percentage of remedial duties that should be borne by sending and receiving societies respectively, to hold Western receiving countries entirely responsible for non-member migrants’ lack of health care coverage is clearly disproportionate and therefore illegitimate.

6.2.3.2 Contribution to a Harmful Global Institutional Order

Another way that the causation principle has been invoked to champion non-member migrants’ routine, broad-based health care coverage in Western receiving countries builds on these countries’ involvement in a world order that disproportionately does violence to residents in LMICs. Representative of this line of argument is the account of global justice that has been advanced by Thomas Pogge. Working from the premise that states have a negative duty to do no harm, Pogge contended that a remedial responsibility will arise when a state “contribut[es] to imposing on [others] an institutional order that foreseeably produces avoidable human rights deficits.”54 Especially concerned by global wealth disparities, he argued that affluent countries are morally obligated to eradicate severe poverty found in other parts of the world given that they have instituted and perpetuated the current international order, whose inequitable effect on global resource distribution is both foreseeable and evitable.55

Expanding on Pogge’s theory, Patricia Illingworth and Wendy Parmet reasoned that Western receiving societies are under a duty to secure health care for migrants, especially those from LMICs, “because they have played a role in creating the global conditions that compromise

[these migrants’] health.”56 As support, Illingworth and Parmet highlighted the complicity of

53 Supra note 4 at 456.

54 “Severe Poverty as a Violation of Negative Duties” (20015) 19 Ethics & Intl Affairs 55 at 61 [“Severe Poverty”].

55 Thomas Pogge, “World Poverty and Human Rights” (2005) 19 Ethics & Intl Affairs 1.

56 Supra note 14 at 135.

231 affluent nations in fuelling global poverty as well as climate change, both of which have been found detrimental to the health of residents in LMICs.57 They also directed our gaze to the operations of international legal instruments like the Agreement on Trade-Related Aspects of Intellectual Property Rights as further illustration of how a world order dominated by affluent countries could undermine the health of the global poor, including impeding their access to essential medicines.58 Accordingly, affluent countries are said to be morally responsible for the health-related harm they have contributed to. And to the extent that people are forced to migrate to Western countries in order to escape such health threats, Illingworth and Parmet suggested that these countries’ causation-based duties must include helping territorially-present migrants secure adequate health care, irrespective of the migrants’ membership status. They explained:

Imagine that Golam as a young adult could not support his family on the income he made in the clothes factories in Bangladesh and left to work in [New York City]. While in the United States he develops debilitating respiratory problems and depression. It would not be far fetched to tie his health problems to his early childhood exposure to pollution from the factories manufacturing cheap clothes for American consumers. Under this very plausible scenario, surely, it would be morally reasonable for the United States to provide for his health needs, and not to discriminate against him because he is a “stranger.” His medical problems are partly caused by the practices of American multinationals, and American consumers have had the benefit of access to inexpensive clothing as his health suffered. If global legal and financial structures contribute to poverty and poor health, and people are driven from their native countries to find ways to meet their basic needs and those of their families, arguably those who contribute to global poverty share some responsibility

for the illnesses that flow from it.59

To be sure, there is much about this account of global justice that I find persuasive. I am largely in agreement with Pogge that affluent countries bear a negative duty to do no harm, and a breach

57 Ibid. at 136-146.

58 Ibid. at 139-140.

59 Ibid. at 147-148.

232 of this duty would demand proper compensations for the victims. I also share the view of Illingworth and Parmet that affluent nations have failed to live up to their negative duty when they continue to uphold an international system that poses adverse effects on people’s health, particularly that of residents in LMICs. Where I part company with Illingworth and Parmet is on the point of what affluent countries must do to remedy the harm they have caused.

What Illingworth and Parmet would like us to accept is a moral requirement on Western receiving countries to provide appropriate health care coverage to anyone within their territories who is from LMICs. This proposition, however, runs into the same difficulties that I mentioned above. For one, Illingworth and Parmet made no distinctions between nationals of LMICs who are in Western receiving countries as migrants and those as tourists; both are said to be entitled to a relatively robust set of health care services comparable to what citizens receive. Again, insofar as this conflation fails to adequately grapple with the implications of societal membership, it is likely going to face pushback from members of Western receiving countries concerning its legitimacy.

In addition, it is arguable that the degree of health care obligations imposed by Illingworth and Parmet on Western receiving countries is out of proportion to these countries’ causal contribution. As much as affluent nations and their citizens are guilty of sustaining the current world order and, by extension, its adverse health consequences, it would be a mistake to suggest that LMICs have played no part in the maintenance of this regime. Take the example of Golam mentioned by Illingworth and Parmet. If the authors are correct to attribute his illnesses to air pollution generated by American-owned factories in Bangladesh, it seems to me that we ought not to completely disregard the Bangladeshi government’s corresponding failure to regulate these harmful business practices within its territory. Similarly, if we accept American consumers’ demand for inexpensive clothing as a contributing factor to Golam’s ill health, it strikes me as only reasonable that we also bear in mind comparable inclinations of Bangladeshi consumers. Once we do so, I find it troubling to accept that Western receiving societies must shoulder the sole responsibility of attending to the health care needs of LMIC nationals who are in their territories.

Even if we set aside concerns about the breadth of Western receiving countries’ health care obligations and accept that these countries’ complicity in engendering the current world order

233 indeed subjects them to one-hundred-percent of the remedial responsibility, the proposition from Illingworth and Parmet still faces another problem. Why should Western receiving states’ health care duties in this case take the form of direct provision of health care coverage to territorially- present foreign nationals? It appears equally reasonable if Western states choose instead to mitigate the injuries they have caused by increasing the amount of aid to LMICs, which in theory can be used by the latter to better weather the health-negating effects of the current world order and develop their health care capacity. In fact, later in the chapter, I argue that this is one of the strategies that Western receiving countries can adopt to help sending countries discharge their obligations as the primary duty bearers vis-à-vis their members’ health care protection. For now, my point is simply that extending health care coverage to people from the global South who happen to be within their territories is but one of the ways that Western states may—as opposed to must—employ to compensate for the harm incurred by the global poor. If anything, this method of compensation seems rather under-inclusive, as it requires those injured to subsequently make their way to Western receiving countries.

To sum up, while the causation principle may on occasion furnish non-member migrants with a valid claim for health care protection beyond primary care in Western receiving countries, there is a limit to this principle as a basis of migrants’ health care entitlement. To trigger causal responsibilities, the health impairment experienced by non-member migrants must not exclusively originate from Western receiving states’ refusal to provide health care when they are not morally required to do so, or from the global injustice that Western societies have contributed to. These attempts to broadly interpret Western countries’ policies and conducts as injurious so that territorially-present non-members may be entitled to routine, broad-based health care on the basis of the causation principle are problematic. Not only do they give insufficient weight to the communal relationships that undergird contemporary health care schemes, but they also risk imposing an inflated remedial burden on Western receiving countries by either overstating these countries’ contribution to non-members’ ill health or underappreciating the possibility for these countries to discharge their health care duties in some other ways.

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6.3 Health Care for Non-Member Migrants Based on the Capacity Principle

Apart from communal membership and causation, our determination of a society’s health care responsibilities may also be guided by what Miller referred to as the principle of capacity. The oft-cited biblical tale about the Good Samaritan—which espouses compassion in the event that we happen upon an injured person on the side of the road60—underscores the moral intuition at issue. By highlighting the iniquity of leaving a person who is experiencing pain and suffering unattended when a remedy is readily available, the story of the Good Samaritan tells us that a person’s ability to right a wrong may sometimes give rise to an ethical duty for the person to do just that, transcending membership- and causation-related considerations. In this section, I will start by fleshing out this principle of capacity before wrestling with its implications for non- member migrants’ health care entitlement in Western receiving societies.

6.3.1 Overview of the Capacity Principle

Contrary to the search for causal responsibility, the capacity principle is prospective in the sense that it concerns less about how a wrong or a deprivation arises and more about who is better positioned to provide the necessary assistance. It dictates that “remedial responsibilities ought to be assigned according to the capacity of each agent to discharge them.”61 In doing so, the capacity principle goes beyond Pogge’s notion of a negative duty to do no harm and to provide compensations only when harm is done. Instead, it prescribes a positive obligation to come to the aid of others for the reason, and to the extent, that we can.

What exactly is meant by remedial capacity will necessitate some unpacking. Above all, I think it goes without saying that capacity entails efficacy. A person that does not have the competence to bring a concerned situation to satisfactory resolution is surely not a suitable duty bearer according to the capacity principle. That said, as Miller cautioned, our conception of remedial capacity ought to give thought to more than people’s effectiveness in rectifying a wrong or a

60 James W Nickel, “Should Undocumented Aliens be Entitled to Health Care?” (1986) 16 Hastings Center Report 19 at 22.

61 Miller, “Distributing Responsibilities,” supra note 4 at 460.

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deprivation.62 For instance, seeing as the main rationale behind the capacity principle is to rest the remedial responsibilities with someone well-positioned to take the necessary course of action, it seems only sensical that our assessment of capacity considers the proximity between the injured person and potential duty bearers. Miller illustrated this point with the example of a bather who is drowning offshore. In such a case, while it makes sense to entrust the duty to rescue with the strongest swimmer, our selection of who the strongest swimmer is would arguably be confined to among those already gathered on the nearby beach.63 As a matter of emergency, the drowning swimmer’s need for immediate assistance calls for the remedial responsibility in this case to be shouldered by someone that is not only capable of providing the required help but also sufficiently close in terms of space and time to effectuate such help. This demand of proximity is also implicit in the Good Samaritan scenario. Whereas our instinct may suggest that people who come across an injured person on the side of the road should lend a hand to the extent that they are able, we tend not to place the same level of obligation on people who are far removed from the scene of injury even if they would have been an effective help. As such, our appraisal of people’s remedial duty based on the capacity principle implies weighing their ability to provide effective help against their proximity to the situation that needs rectifying. All else being equal, people that are situated more closely to an injured person and consequently more readily able to lend a hand are deemed to have a greater remedial capacity than those that are more remotely located.

Another issue that must be factored into the determination of capacity is the cost that a person may be exposed to if asked to provide the necessary help. Referring again to the case of a drowning bather, Miller exemplified how concerns about cost may undercut one’s effectiveness as a possible bearer of remedial duty. He postulated: “The strongest swimmer may also be fearful (so that although he is an effective rescuer, the rescue causes him considerable distress)—or perhaps he simply dislikes the kind of attention that goes along with a successful rescue.”64 In other words, at times, the cost of helping may simply be too high for an otherwise proficient and

62 Ibid. at 461.

63 Ibid. at 461-462.

64 Ibid. at 461.

236 ideally-situated individual to be identified as a capable duty bearer. Alternatively, a party may initially be deemed sufficiently capable and therefore morally responsible for attending to the needs of an injured person, but as the cost it incurs for helping grows over time, there may come a point when the application of the capacity principle is no longer found appropriate. Walzer’s take on the Good Samaritan story is illustrative of this scenario. Recall his doctrine of mutual aid, which I mentioned in the preceding chapter. Although he agrees that “[g]roups of people ought to help necessitous strangers whom they somehow discover in their midst or on their path,” he saw this positive duty to assist as conditional upon “the risks and costs of giving [help remaining] relatively low.”65

In short, the capacity principle assigns remedial responsibilities to people who are best placed to correct a wrong or a deprivation by taking into account their effectiveness in bringing about the desired solution, their proximity to the concerned situation, and the costs they may sustain in the course of providing assistance. In balancing these factors, as Miller noted, our moral intuition to hold people remedially responsible based on their capacity is generally the strongest when a prospective duty bearer “happens to be the only person currently in a position to do anything about [an injured person’s] condition,” and the condition at issue is “one of significant deprivation or injury.”66 From the perspectives of logic and practicality, bestowing remedial duties on the sole party that has a real chance of ameliorating a significant but reparable harm makes sense. However, this ethical duty to take positive actions may be tempered by cost considerations. When the cost of helping is genuinely prohibitive, the capacity principle will not hold a person remedially responsible, or at least not fully responsible, no matter how effective or well-positioned they may be in rectifying the wrong or deprivation in question.

6.3.2 Applying the Capacity Principle in Health Care Context

In keeping with the principle of remedial capacity, I contend that Western receiving states are obligated to provide anyone who is territorially present, including non-member migrants, with at least health care that is time-critical in nature and cannot be deferred. Without meaning to be

65 Walzer, supra note 3 at 33.

66 “Distributing Responsibilities,” supra note 4 at 463.

237 comprehensive, such undelayable health care in my view would typically encompass treatment for illnesses or injuries that seriously threaten people’s lives, limbs, or bodily functions if medical attention is not immediately forthcoming. It would also cover health care for women during labour and childbirth, as well as for newborns. In what follows, I explain how I reach this conclusion.

As my starting point, I think it is safe to assume that, as far as most health care services go today, a level of physical contact between patients and practitioners is still required. This underscores the importance of being close to patients as a determinant of a society’s health care duties pursuant to the capacity principle. Holding all other variables constant, the health care system in a patient’s place of residence, given its proximity, arguably has a greater responsibility than do systems in other jurisdictions to alleviate the patient’s unmet health care needs.67

Having said that, again, capability-based duties are not open-ended. A country is only morally required to provide health care to territorially-present individuals if doing so will not involve undue costs. Undoubtedly, what constitutes unreasonable cost is in many ways a moving target that defies precise definition. But what seems plain is that, in light of the potential price tag, being closely situated to provide the necessary medical help may not by itself be a strong enough justification for requiring a state to meet all the health care needs of everyone inside its borders. In fact, it cannot be. As I have explained earlier in relation to the causation principle, so long as health care remains a form of communal provision in the eyes of most people, societal membership must play a role in our distribution of health care responsibilities. And when it comes to people who are not members of their country of residence, this means that both sending and receiving societies may constitute appropriate duty bearers—the former on account of membership ties and the latter remedial capacity. In such a situation, Miller’s connection theory tells us that the responsibility of fulfilling these non-members’ health care needs should be divided between the two societies. Any attempt to exclusively rely on receiving countries’

67 Admittedly, there are exceptions to this general rule. For example, for people living close to international borders, the nearest health care facility may sometimes be located across the border (in Country B) rather than in their country of residence (Country A). Accordingly, Country B may at times be considered the more capable—and by extension, more appropriate—bearer of health care duty in relation to these people. However, I do not think this exception seriously undermines the general point that I am making here.

238 remedial capacity (or for that matter, their causal responsibilities) to rationalize non-members’ entitlement to routine, broad-based health care coverage will raise the spectre of illegitimacy.

Consequently, much like causation, the use of the capacity principle as a basis for non-member migrants’ health care entitlement in Western receiving societies has an outer limit. Within this limit, however, the content of Western receiving societies’ capacity-based health care duties toward non-member migrants seems more obscure, as it stands to vary according to each society’s cost capacity at any given moment. Be that as it may, I think the general acceptance of the Good Samaritan principle makes it clear that in the event of medical emergency or when urgent medical attention is otherwise required, concerns about remedial capacity must be prioritized over societal membership as the determining factor in the attribution of health care obligations. The time-sensitive nature of a patient’s health care needs in these instances demands immediate intervention, which in usual circumstances necessitates the involvement of health care providers in close proximity to the patient. Therefore, when it comes to health care that cannot be deferred, Western receiving societies bear a moral obligation to make it available to everyone who is territorially present, regardless of one’s membership status.

Importantly, as Western receiving countries’ remedial capacity in situations of medical emergency is particularly rooted in their ability to attend to patients’ needs without delay, their corresponding duties are presumably restricted to the provision of the requisite health care. Whereas the financing of undelayable health care normally does not demand the same proximity of time and space, thus moving our analysis outside a Good Samaritan scenario, the extent of Western receiving societies’ responsibility to do so is less clear, as it would be subject to the abovementioned considerations of cost and membership. Miller explained the appropriateness of dividing “immediate” and “final” remedial responsibilities as such by returning to his example of a drowning person offshore.68 Let us assume that the drowning person is my child and I am unable to swim. It would be reasonable for us, based on the capacity principle, to place the immediate duty to rescue on a competent swimmer who is already nearby. But as Miller posited, “I remain ultimately responsible for my child’s welfare once he is pulled out, and for any

68 “Distributing Responsibilities,” supra note 4 at 468.

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damage suffered by the rescuer.”69 Based on the same logic, it appears proper that once a person’s medical emergency is attended to and their health condition stabilized by their place of residence, the principle of communal ties may again overtake capacity as our guide for assigning health care obligations toward this person. It follows that in regard to undelayable health care provided by Western receiving countries to non-members, particularly those who are genuinely tourists, a case may be made that at least part of the outlay should be assumed by sending countries.

As such, I do not think it is per se unethical for health care providers in Western receiving societies to try and recover some of their expenses relating to undelayable care from non- member patients. This notwithstanding, certain practices that health care providers in Western receiving countries currently undertake in the name of cost recovery are clearly unjust and must be avoided. Most notably, health care providers in countries like the U.S. and Canada are known to charge uninsured non-member patients significantly higher prices than what they bill public and private insurers for the same medical procedures.70 Studies in the U.S. show that the fees imposed on uninsured patients are particularly elevated for treatments concerning medical emergencies, sometimes reaching as high as 12.6 times the amount payable by Medicare.71 Such excess charges for undelayable health care strike me as unjust. I agree with Mikhail Valdman, who argued that it is morally wrong “to extract excessive benefits from people who cannot, or cannot reasonably, refuse our offers.”72 In the face of imminent threats to life, limbs, or bodily function, I think it is open to reason that being provided access to medically necessary health care constitutes an offer that would be difficult for patients to refuse. Thus, insofar as the treatment prices negotiated between health care providers and insurers serve as a valid indicator of what the providers believe to be fair compensation for their services, compelling non-member

69 Ibid.

70 See e.g. Stacie B Dusetzina, Ethan Basch & Nancy L Keating, “For Uninsured Cancer Patients, Outpatient Charges Can be Costly, Putting Treatments Out of Reach” (2015) 34 Health Affairs 584; Daud Grewal, Policy Paper: International Students (Toronto: Ontario Undergraduate Student Alliance, 2010) at 9.

71 Tim Xu et al, “Variation in Emergency Department vs Internal Medicine Excess Charges in the United States” (2017) 177 JAMA Internal Medicine 1139. See also Joshua Tseng, Harry C Sax & Rodrigo F Alban, “Variability in Critical Care-Related Charge Markups in Medicare Patients” (2018) 84 American Surgeon 1622.

72 “A Theory of Wrongful Exploitation” (2009) 9 Philosophers’ Imprint 6 at 1 .

240 patients who are facing medical emergencies to pay at a rate that exceeds the insurer-agreed amount is wrongfully exploitative. What’s more, non-member patients in need of undelayable health care should never be required to pay, no matter the sum, before actual service provision. To allow otherwise would markedly impede non-member patients’ timely access to care. Not only does this endanger these patients’ health, but it also flies in the face of why Western receiving societies, in light of their capacity to promptly intervene, are entrusted with providing non-members with undelayable health care in the first place.

6.4 Conclusion

The objective of this chapter, in a nutshell, is to lay out the minimum content of non-member migrants’ health care entitlement in Western receiving countries. In the process, where appropriate, I also try to distinguish the moral claims of non-member migrants from those of tourists. Relying on the principle of causation, I argue that Western receiving societies owe an ethical duty to care for non-member migrants who are by definition their usual residents, and whose health they have jeopardized. Evidence shows that Western receiving countries regularly and knowingly subject non-member migrants within their territories to a set of living conditions that are precarious, stress-inducing, and health-negating. This contribution to non-member migrants’ risk of ill-health in turn triggers Western receiving countries’ duty to right their wrongs. At the very least, Western receiving societies must ensure that territorially-present, non- member migrants have coverage for primary care so they can monitor their health and address a basic set of health care needs. In contrast, seeing as tourists are not residents of receiving societies and therefore normally less affected by these societies’ institutions and environment, I do not think the causation principle can be similarly used to provide for their health care entitlement therein.

Furthermore, by resorting to the principle of remedial capacity, I suggest that Western receiving countries also have an ethical duty to provide undelayable health care—including, inter alia, emergency care and reproductive and maternal care—to anyone within their territories who require it. The urgency underlying this type of health care needs calls for timely medical intervention, which in turn brings into focus the proximity between a society and people that are territorially present. Being the party most capable of rendering help in these circumstances, the society where people are physically located incurs remedial responsibilities as a result, and this

241 responsibility extends to members, non-member migrants, and tourists alike. Much like in the Good Samaritan’s tale, a chance encounter between two complete strangers where one is in dire need of help is sufficient to generate moral obligations for the other. However, the scope of such capacity-based obligations is limited in part by cost-related concerns. To the extent that an unreasonable cost burden may be foisted on them, Western receiving societies are permitted to recover some of the expenses associated with their provision of undelayable care to non- members, including charging non-member patients directly for health care delivered. But such cost recovery must not be carried out in an exploitative manner, and it must not get in the way of non-members’ timely access to undelayable treatment.

Implicit in these conclusions that I have drawn is an acknowledgement that neither causation nor capacity can entirely displace societal membership in the determination of a state’s health care responsibilities. As much as primary care coverage and provision of undelayable care constitute only the minimum of what Western receiving societies must make available to territorially- present, non-member migrants on the account of causation and capacity, it is also the case that neither factor can be stretched so far that they are used to bring about a level of health care coverage for non-members that verges on what members of Western receiving societies generally get. As long as health care entitlement continues to be treated and governed as a product of social cooperation among members of a particular society, to completely ignore communal affiliations in the distribution of health care responsibilities will risk having the distributive results dismissed by many as illegitimate. For non-member migrants, this means that the obligation of meeting their health care needs ought to be split between sending and receiving societies. Although the health care coverage extended to them by Western receiving countries is accordingly not going to be as fulsome as what their member counterparts receive, it need not be. In theory, the health care protection they enjoy in Western receiving countries pursuant to the causation and capacity principles merely complements what they should also receive from sending countries based on their persisting membership ties. When sending countries fall short of ensuring sufficient health care protection for their members who are temporarily abroad, the onus is on them to make this right. Such is a corollary of what it means to divide health care responsibilities between sending and receiving states.

Understandably, to suggest that a good part of non-member migrants’ health care needs left unmet by Western receiving countries would in theory be addressed by sending countries is cold

242 comfort for those from states that are unable to adequately discharge this obligation in actuality. It stands to reason that currently at least some, if not many, LMICs genuinely do not have the financial capacity and/or governance structures necessary to safeguard the health care security of their members abroad. In addition, when it comes to asylum seekers, it is clearly impractical to expect sending countries, allegedly persecutory or mired in generalized violence, to do much in the way of facilitating their health care. These realities of unmet health care needs, as I have stressed throughout this dissertation, are unhumanitarian and unjust. And from both legal and ethical perspectives, they demand intervention from the international community.

Legally, an array of international treaties and related instruments have underscored countries’ duty to work together for the advancement of the world’s social and economic conditions, including the promotion of the highest attainable standard of health for everyone.73 As the U.N. Committee on Economic, Social and Cultural Rights opined, all State parties are under an obligation to “take steps, individually and through international assistance and cooperation, especially economic and technical, toward the full realization of [socioeconomic] rights …, such as the right to health.”74 And among other things, “[d]epending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required.”75 What this makes clear is that, under international law, although each country may well bear the primary responsibility of attending to the health care needs of its own population, every state, especially the ones with greater resources, is also obligated to come to one another’s aid for the sake of achieving adequate health care for all.

To some, this legal obligation is bolstered by the moral imperative that the international community take steps to tackle the injustice associated with global inequalities. I am alive to the presence of a longstanding debate concerning whether—and if so, what—states owe each other

73 See e.g. Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 56; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 2.

74 General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN CESCROR, 22nd Sess., UN Doc. E/C.12/2000/4 at 127 (2000), para. 38.

75 Ibid., para 39.

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in the name of global justice.76 It is not my intention here to add to the much ink already spilled on this subject. Rather, I will simply make my point by leaning on Pogge’s theory of negative duty to do no harm. Recall Pogge’s claim that affluent states are under a responsibility to remedy the “avoidable human rights deficits” they have contributed to as a result of being complicit in the creation and maintenance of the existing world order.77 By the same token, I argue that Western countries, having played a key part in causing the global resource disparities, are ethically bound to assist LMICs with meeting the health care needs of their populations, including expatriates. This may be accomplished, as Pogge suggested, “by making as much of an effort, aimed at protecting the victims of injustice or at institutional reform, as would suffice to eradicate the harms.”78 For example, Western states may help LMICs foster their health care capabilities by increasing development aid to these countries. Or, they may extend health care coverage beyond the minimum that I have laid out in this chapter to asylum seekers as well as nationals of LMICs who are territorially present. Hopefully, with time and a genuine commitment to international collaboration, these measures will enable all states to fulfil their health care responsibilities toward their members, including those who are temporarily abroad.

76 See e.g. Mathias Risse, “What We Owe to the Global Poor” (2005) 9:1/2 J Ethics 81; David Hunter & Angus J Dawson, “Is There a Need for Global Health Ethics? For and Against” in Solomon Benatar & Gillian Brock, eds, Global Health and Global Health Ethics (Cambridge: Cambridge University Press, 2011) 77.

77 “Severe Poverty”, supra note 54 at 61.

78 Ibid. at 70.

Chapter 7 Conclusion 7.1 Summary of Arguments and Implications

In an article written in 2004, James Dwyer described the debate in the U.S. over undocumented migrants’ health care entitlement as being dominated by two opposing views.1 On one end were those Dwyer named “nationalists,” who opposed undocumented migrants’ eligibility for health care on the grounds that they had breached immigration rules and that they lacked formal citizenship.2 On the other end were so-called “humanists,” who insisted on receiving states’ obligations to uniformly protect the health of all people inside their territories to make good on people’s basic human right.3 My review of Western receiving countries’ migrant health care policies and related political discourse reveals that such polarization, although somewhat stylized, has transcended international borders and pervaded the entire policy conversation about migrants’ health care. And this largely remains the discursive landscape today. Whereas people who are against migrants’ general health care entitlement continue to emphasize migrants’ legal standing as non-citizens and the need for receiving countries to look after their citizens first, advocates of greater health care protection for migrants regularly turn to cosmopolitan ethics to stress the indistinguishable moral worth of every individual and call on receiving states to treat citizens and migrants equally.

Dissatisfied with both sides of the debate and the seeming impasse between them, I embarked on this project with the hope of articulating an account of migrants’ health care entitlement that Western liberal democratic societies can reasonably be expected to accept. At a minimum, such a normative account must do more than appealing to some general appreciation of health care as a human right. It must offer an explanation for Western receiving states’ specific responsibility to fulfil migrants’ right to health care, and it must do so with due regard to the existing mechanisms of health care resource redistribution. This is because the main source of disagreement between

1 “Illegal Immigrants, Health Care, and Social Responsibility” (2004) 34 Hasting Center Report 34.

2 Ibid. at 34.

3 Ibid.

244 245 the typical stances in the contemporary migrant health care debate arguably lies not in whether societies have a role to play in safeguarding people’s adequate health care coverage, but which societies—especially between sending and receiving countries—ought to include migrants in their health care measures. Accordingly, if my justification for migrants’ health care entitlement is to gain traction, it needs to be grounded in an understanding of the relationship between receiving societies and migrants that not only resonates with people’s lived reality, but also is robust enough to rationalize receiving societies’ distribution of resources to migrants.

Working within these parameters, I put forth an account of migrants’ health care entitlement that is foremost grounded in migrants’ membership and, by extension, belonging in Western receiving societies. This proposal is premised on the recognition that we live in a world where people’s perception of community and the systems of social provision are primarily national rather than global. As Keith Banting and colleagues observed, “the cross-national evidence is clear: the welfare state and powerful forms of redistribution between rich and poor have been built at the level of the state, sharing resources among members of the society as a whole.”4 So long as this status quo persists, I suggest that societal membership is morally significant to the delineation of health care entitlement in Western liberal democracies. In each of these societies, the sense of togetherness experienced by members stands as the most compelling source of solidarity at present that motivates and justifies the redistribution of health care resources. It follows that the breadth of self-styled “universal” health care programs in Western receiving societies must prima facie coincide with the span of the relevant societal membership. To impose on Western countries a health care obligation whose scope is broader than that of their membership, and therefore the solidarity that it generates, risks being dismissed as illegitimate; people who are demanded to part away with their resources for the benefit of those they experience no solidarity with will likely question what is in it for them and perceive these “strangers” as a threat. Conversely, it is unjust to prescribe a health care obligation that omits people who properly constitute members of a society and share a sense of solidarity with one another on that basis; it violates the norms of equality and reciprocity, both are fundamental to

4 “Beyond National Identity: Liberal Nationalism, Shared Membership and Solidarity” in Gina Gustavsson & David Miller, eds, Liberal Nationalism and Its Critics: Normative and Empirical Questions (Oxford, UK: Oxford University Press, 2020) 205 at 208.

246 the liberal democratic philosophy. Every member of a society ought to be entitled to the same level of health care coverage as a form of communal provision. Thus, broad-based, ongoing health care resource redistribution in Western receiving countries ought to encompass migrants to the extent that they represent members thereof.

In many ways, by tying entitlement to societal membership, my conception of migrant health care exudes the communitarian spirit that have animated the nationalists’ worldview. However, like the humanists, I find the nationalists’ customary equation of formal citizenship status with societal membership problematic. Although citizenship as a legal instrument does have the function of signaling societal members’ special stature and protecting their interests to belong in a community, it is also vulnerable to manipulation by the forces of social exclusion and has a tendency to leave out marginalized groups like migrants. For this reason, I argue that all migrants who are ordinarily resident in a Western receiving society, irrespective of their official citizenship and immigration statuses, should be considered members of the said society. Exactly how “ordinary residence” is defined is something that I think most appropriate for each receiving country to work out on its own. But broadly speaking, ordinary residence in a society denotes people’s establishment of primary residence therein and the fact that they have lived there for a considerable period of time. Given this prolonged presence, ordinarily resident migrants can reasonably be expected to have achieved a state of belonging to their receiving societies. They are likely to have embedded themselves in receiving societies’ social and economic fabric, and their identities and life chances would often have become closely intertwined with those of their co-residents. Such personal affiliations, social cooperation, self-identification, and subjection to state authority all point to ordinarily resident migrants’ moral claim to call receiving countries their home and to be treated akin to citizens—at least for the purpose of determining health care entitlement.

The same membership claim, I argue, apply with equal force to migrants whose ordinary residence, despite not yet a reality, can in most cases be predicted to occur in the near future. These would-be ordinary residents include migrants who have been granted permanent resident status by receiving states, as well as humanitarian migrants such as refugees and stateless migrants whose circumstances have been verified. For these migrants, being ordinarily resident in receiving countries is often required by law or realities of life. Effectively, receiving countries are their home. The connections that people usually have with their homes and the interests to

247 have such connections preserved warrant the bestowment of societal membership, including equal entitlement to communal provision like health care, upon these migrants.

In comparison, Western receiving states’ health care obligations toward migrants whose ordinary residence is neither factual nor reasonably foreseeable may be much more circumscribed. Non- member migrants lack the necessary solidarity with receiving societies to legitimize their entitlement to the full spectrum of health care available to members. Until this situation changes, I posit that most members of receiving countries would find it more acceptable if the responsibility of addressing these migrants’ health care needs falls principally on sending countries. Nevertheless, with Western receiving societies being their usual place of residence where they temporarily live, work, grow, and age, non-member migrants are still connected to these societies in an intimate, thus morally significant, fashion. Not only do receiving societies shape the health of non-member migrants, but they also represent the agent that is best placed to attend to these migrants’ immediate health care needs. On these bases, I contend that non- member migrants in Western receiving states ought to receive at least a basic level of health care protection, including coverage for primary care and provision of undelayable treatment.

Having sorted out Western receiving societies’ health care obligations toward migrants that are in their midst, I am now in a position to revisit the two vignettes presented at the beginning of this dissertation and to answer the questions that I posed in relation thereto. Recall first that Adankwo Okoye was a Nigerian national who had spent over ten years in the Netherlands before she immigrated to and received permanent resident status in Canada. She gave birth soon after her arrival in the province of Ontario while she was still completing the three-month wait imposed by the government on all new residents before qualifying for public health care insurance. As a result, she was left to pay for her childbirth at a local hospital out of pocket. Was Ontario’s decision in this case morally justifiable? According to my account of migrant health care entitlement, the answer is no. Despite only landing in Canada relatively recently, her admission into the country as a permanent resident suggests that Okoye should have been treated like a member of the Canadian society and afforded public health care coverage immediately upon her arrival. Given her legal status, we can foretell with a high degree of confidence that she would become ordinarily resident in Canada in due course. If her legal status were otherwise, her health care entitlement might have been different.

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Assume for example that Okoye was in Canada as a temporary foreign worker or an international student instead, whose ordinary residence in the country cannot be predicted precisely from the outset. In this scenario, she would have only had a moral claim to receive reproductive and maternal care to the extent that it is undeferrable. And, the relevant hospital would have been ethically permitted to recover the cost of health care from Okoye, so long as it does so after treatment was rendered and it does not charge her more than the price that the public health insurance program has agreed to pay for the same services. It would, however, be incumbent upon the Netherlands to help Okoye defray such health care cost. Having lived there for over a decade, Okoye ought to have been considered a member of the Dutch society. This pre-existing membership tie and the accompanying sense of societal belonging normally would persist for some time after emigration, unless she had left the Netherlands as a refugee. It follows that until she becomes ordinarily resident in Canada, it is the Netherlands that should bear the primary duty of fulfilling her health care rights. The only exception to this rule concerns primary care, including, for instance, preventive health services, medical diagnosis, and treatment for minor ailments. Coverage for health care of this nature should be provided by Canada in this case, with it being Okoye’s new usual place of residence, which represents both a notable determinant of her health and the agent best placed to attend to her health care needs.

Next, let me turn to the case of Sabrina Navarro, a Mexican national who had lived in the U.S. for more than fifteen years without any legal status before she was diagnosed with end-stage renal disease. Whereas U.S. citizens with her health condition would have been eligible for publicly-funded routine hemodialysis, she was granted no such entitlement and instead had to rely on repeated emergency dialysis to stay alive. From a membership-based perspective, such differential health care coverage between citizens and undocumented migrants in a Western receiving society is unethical. As much as I believe that specifying the length of time that one must spend in a community before being deemed ordinarily resident is a decision best left to each receiving society, such line drawing must come within a range of reasonableness. I think almost all reasonable people can agree that Navarro have established ordinary residence in the U.S. having lived there for more than fifteen years. Over this time, she had formed close relationships with her co-residents, including giving birth to and raising three American-born children, and she remained an active participant in social cooperation through community volunteerism even after she became ill. Also, her prolonged exposure to the American society

249 and its legal and political institutions likely would have heavily influenced her sense of self as well as her life opportunities and choices. All this points to her societal belonging and the need for such belonging to be protected through the mechanism of membership. Her lack of legal status in the U.S. does not detract from these facts. As a member of a liberal democratic society such as the U.S., Navarro should have been entitled to routine dialysis akin to her citizen counterparts.

As my assessment of these two cases shows, the health care obligations that I think Western receiving societies ought to shoulder in relation to migrants can be more onerous in some respects when compared with the status quo. In regard to long-term migrants whose legal status in receiving states is precarious and as a result are often left medically un- or under-insured— including undocumented migrants and those who are made to renew or cycle through temporary immigration statuses in perpetuity—I argue that upon establishing ordinary residence, they must be extended public health care coverage on par with what citizens receive. Likewise, rather than facing mandatory waiting periods as they sometimes do, migrants with legal statuses that allow them to remain in Western receiving countries on a long-term basis should be entitled to citizen- like health care from the moment their legal statuses take effect, given their impending ordinary residence. Liberal democratic norms demand nothing less as Western receiving societies continue reaping the economic, demographic, and social benefit of immigration.

But, is it financially feasible for Western receiving countries to bear such migrant health care obligations? An axiom in Western philosophy avers that “ought implies can.”5 That is, it is morally indefensible to impose on an agent a responsibility that it lacks the ability to fulfil. In my view, this is not a concern for the account of migrant health care entitlement that I have advanced. Admittedly, assuming the basket of health care services that is publicly covered stays the same, increasing the number of people who are entitled to such health care may require Western receiving countries to invest additional resources, particularly in the short term. But as seen in Chapter 4, evidence shows that in the long run, the costs of making routine health care more accessible to ordinarily resident migrants may be offset at least partially by savings

5 Norman Daniels & Keren Ladin, “Immigration and Access to Health Care” in John D Arras, Elizabeth Fenton & Rebecca Kukla, eds, The Routledge Companion to Bioethics (New York: Routledge, 2015) 56 at 59.

250 resulting from migrants’ greater uptake of preventive services, earlier detection and intervention of ailments, and reduction in their risk of developing medical complications and their need for emergency and intensive treatment. Indeed, as observed in Chapter 2, a handful of European countries (e.g., France, the Netherlands, and Portugal) already boast migrant health care policies that are comparable to my proposal. Thus, barring some extraordinary turn of events such as a sudden and significant jump in the number of migrants arriving and becoming ordinarily resident in a country—although again, existing research relating to the “welfare magnet hypothesis” does not suggest this to be a likely outcome of a country’s expansion of migrants’ health care entitlement—I do not believe the cost implication of my proposal would lie beyond the realm of what Western receiving states can reasonably be expected to absorb.

On the other hand, the level of health care responsibilities that I attach to Western receiving societies with respect to non-member migrants—namely, temporary migrants and migrants whose ordinary residence could not be accurately predicted upfront—pales in comparison with the health care policies presently implemented in some jurisdictions. Taking Canada as an example, temporary foreign workers and international students in some provinces, as well as all asylum seekers across the country, are currently afforded health care coverage that is equal to what citizens and permanent residents receive, over and above mere coverage of primary care and provision of undelayable treatment. What does my account of migrant health care entitlement mean for these policies? In answering this question, it behooves me to reiterate that my proposal lays out the minimum rather than the maximum ethical responsibilities of Western receiving countries. Receiving states are always free to adopt a more generous migrant health care scheme than what I have prescribed, provided that they have good reasons for it. For instance, they may choose to do so out of humanitarianism, potential for cost saving, or as a migrant recruitment and settlement strategy. There is nothing unjust about affording non-member migrants health care coverage that is more expansive than the morally required minimum on these bases, and I do not suggest existing policies of this nature need to be scaled back. That said, when such policies are adopted, I caution that their scope should correspond to the relationships that societal members generally have with non-member migrants in the relevant countries. Specifically, the extension of more-than-minimum health care to non-member migrants ought to be explainable by receiving states on the basis of the causation or capacity principle, or both. In the alternative, receiving countries must work to broker and maintain the

251 necessary social solidarity between their pre-existing members and these newcomers. Without such relational underpinning, Western receiving countries’ migrant health care programs risk being rejected as illegitimate, which in turn jeopardizes their stability.

Thus, inasmuch as my account of migrant health care entitlement imparts a level of health care coverage to some migrants that is less than what they currently receive, it should be taken by Western receiving states more as a call to action than permission to roll back the status quo. It serves as a warning to the relevant countries that if they think it furthers the public interest to broaden migrants’ health care protection beyond what I have proposed, merely making the legislative and/or policy changes is insufficient. They need to continuously nurture the relationship between their populations and pertinent migrant groups so as to make the necessary resource redistribution between them acceptable. And where such a relationship already exists, receiving countries would do well to impress on their populations regularly the moral significance of this relationship in terms of health care.

Inevitably, even with the understanding that it is meant as a floor instead of a ceiling, there will be readers who are disappointed with the health care obligation that I impose on Western receiving countries for not being demanding enough. To those who hold this view, it bears repeating that I do not claim that non-member migrants ought not to be entitled to a broader array of health care per se. Rather, my position is that unless a closer relationship is established between them and the relevant receiving societies so as to legitimize their sharing of communal resources, non-member migrants’ right to health care beyond the bare minimum is more appropriately fulfilled by sending countries. Admittedly, not all sending countries are at present capable of shouldering this responsibility, owing in no small part to the inequitable global order that Western states have played an integral role in engendering and perpetuating. As such, I argue that in addition to providing a basic set of health care to territorially-present, non-member migrants, Western countries are under an ethical duty to help lower- and middle-income sending countries (“LMICs”) furnish these migrants with additional health care coverage. It is up to Western receiving countries to determine how this ethical duty is fulfilled. They may, for example, provide aid to LMICs to assist their development, such that these countries will build greater health care capacities in time. Alternatively, they may opt to extend greater health care protection directly to territorially-present migrants who are from LMICs. Or, they may adopt a combination of these approaches.

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7.2 Directions of Future Research

In my attempt to contain this research project within a manageable scope, I have had to either leave out or skim through a number of important issues while delineating migrants’ right to health care in Western receiving states. Chief among them are: the ethics of international migration and border control and its relationship with the morality of migrant health care; the likelihood of my stipulated health care entitlement for migrants being translated into actual access; and, specific strategies for generating solidaristic bonds between people in receiving societies and beyond so as to facilitate health care resource redistribution. Although my normative analysis stands on its own, more in-depth examination of these issues would have made my study of migrant health care more complete. To close out this dissertation, in the remainder of this chapter, I will briefly consider the significance of these issues to migrants’ realization of the right to health care and identify some pertinent questions that would benefit from further exploration.

7.2.1 Relationship Between Border Control and Migrant Health Care Entitlement

In this dissertation, I have situated my analysis of migrants’ health care entitlement within the existing global order. Among other things, I have taken for granted states’ sovereign control over their respective borders, which allows them to, at the very least, “prevent the entry [of], and … subsequently exclude, migrants who attempt to enter or do enter state territory without formal state authorization.”6 I am cognizant that the morality of such state sovereignty has been disputed by scholars based on a diverse array of philosophical thoughts ranging from libertarianism to liberal egalitarianism to utilitarianism.7 But like Joseph Carens who adopted the same analytical approach in his study of the ethics of immigration, I see much value in pursuing my normative inquiries within the confines of real-world conditions. To borrow Carens’s words, “I accept the conventional moral view on immigration because it is, as the name implies, widely

6 Linda Bosniak, “Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention” (1991) 25 Intl Migration Rev 737 at 744.

7 See e.g. Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders” (1987) 49 Rev Politics 251; Arash Abizadeh, “Liberal Egalitarian Arguments for Closed Borders: Some Preliminary Critical Reflections” (2006) 4:2 Ethics & Economics 10.

253 held, and I want to explore what normative conclusion we can reach … within the constraints that this view imposes.”8

One implication of my acceptance of states’ freedom to exercise border control is that it is sometimes suggested an inverse correlation exists between the robustness of the rights that are bestowed on migrants by Western receiving countries and the number of migrants that these countries would be prepared to let in. Such a hypothesis, if proven correct, raises the worry that expanding migrants’ entitlement, including that to health care, might inadvertently pressure Western receiving states to tighten their borders, which could bring about injustice of a different nature. For example, according to one version of this claim that I have already alluded to in Chapter 5, if Western receiving states are required to furnish migrants who are ordinarily resident with more rights, they may decide to restrict migrants’ ability to reside prolongedly in the first place. To the extent that such reduction in the permeability of borders decreases the amount of remittances that are sent to LMICs by migrants, it may have the effect of exacerbating global wealth disparities.9 Alternatively, restrictive immigration rules may drive some of the migrants to enter or stay in receiving societies without authorization and as a result cause them to live a highly vulnerable life. Either way, it is alleged that “insisting on equal rights for [ordinarily resident migrants] sounds admirable but is unrealistic and counterproductive in practice. It harms those it is intended to help.”10

This allegation, given its seriousness, deserves further study. At first glance, however, the supposedly inverse relationship between the porosity of a receiving state’s borders and the range of rights that migrants enjoy in the said state appears to be an over-simplistic appreciation of reality. To be sure, there are indeed notable instances where Western receiving countries’ relaxation of border control is accompanied by corresponding restriction of migrants’ entitlement. As a case in point, as seen in Chapter 2, when Canada introduced the “super visa” in 2011 to make it easier for foreign-born Canadians to reunite with their parents and/or grandparents that live abroad, it also made certain that these typically older migrants would not

8 Joseph H. Carens, The Ethics of Immigration (New York: Oxford University Press, 2013) at 10.

9 Ibid. at 124.

10 Ibid. at 126-127.

254 be entitled to social and health care benefits. But at the same time, anecdotal evidence seems to indicate that the reverse is not always true. There are numerous occasions where a Western receiving country’s cuts to migrants’ health care are not followed by liberalization of the country’s immigration rules, and vice versa. For example, when Canada significantly scaled back its public health care coverage for refugees and asylum seekers in 2012, a number of policy changes were also introduced to make the asylum claiming process much more difficult than before, instead of the opposite.11 Likewise, when this refugee health care program was restored in 2016 by a new government, it coincided with the government’s effort to resettle more than twice as many Syrian refugees in Canada as the previous administration had promised.12 Although these observations may or may not be representative of the overall trend—hence the need for additional exploration—they indicate that, at a minimum, the fear for more stringent border controls in the wake of increased migrant health care entitlement may need to be tempered by a more nuanced understanding of what shapes Western receiving states’ immigration policy-making.

Even assuming that the hypothesized inverse relationship between the robustness of migrants’ entitlement and the ease of their admission into a receiving country is supported empirically, the conclusion that we ought to sacrifice the former in favour of the latter still appears premature. For one, more explanation is needed for why consequentialism is the appropriate ethical posture that we ought to adopt in this case. To name but one example, Carens has instead championed a deontological perspective. He criticized the hesitation to expand migrants’ entitlement in the name of preserving international mobility, and argued that “it is not morally acceptable to rob from the poor even if the goal is to help those who are even poorer.”13 It seems to me that perspectives of this kind have not been fully grappled with by those who worry about the potential negative impact of broadening receiving states’ migrant health care responsibilities. But even if one accepts the consequentialist view, I do not think it necessarily follows that ensuring

11 Johanna Reynolds & Jennifer Hyndman, “A Turn in Canadian Refugee Policy and Practice” (2015) 16:2 Seton Hall J Diplomacy & Intl Relations 41.

12 “Conservative Government Aims to Resettle 10,000 Syrian Refugees by September 2016”, CBC News (19 September 2015), online: ; “Liberals to Restore Refugee Health Care within Months: Immigration Minister”, CTV News (7 November 2015), online: .

13 The Ethics of Immigration, supra note 8 at 125.

255 greater entitlement for migrants would do more harm than good. As much as the closure of Western receiving countries’ borders may give rise to unjust consequences, so would denying migrants the rights and benefits that they are morally entitled to, including adequate health care. How should we choose between these two unfortunate outcomes? Is weighing the number of people that may be adversely affected by each of the options an appropriate approach? Or, should a different measure be used? These are just some of the questions that I think ought to be pursued further by future studies.

7.2.2 Potential Barriers to Actualizing Migrants’ Health Care Entitlement

Also omitted from the current project is an in-depth look at migrants’ ability to convert health care entitlement on paper into service access in reality. As affordability represents only one determinant of health care accessibility, studies reveal that even in countries that provide universal health care coverage, residents may continue to struggle with differential access to medically necessary care, which contributes to health disparities.14 Some of the common sources of impediment to health care access include: unaffordability of co-payments, where such requirement exists; structural factors like wait times, transportation barriers, and health facilities’ limited hours of operation; and information-related challenges such as patients’ poor health literacy, practitioners’ lack of clinical cultural competence, and communication difficulties between service providers and users.15 Many of these access barriers are particularly relevant to migrants given their often lower socioeconomic status as a group, greater chances of experiencing discrimination in health care, and their tendency to be unfamiliar with receiving states’ health care systems and to encounter services that are not culturally or linguistically appropriate.16 Without tackling these obstacles to timely service access, Western receiving

14 See e.g. Iain Paterson & Ken Judge, “Equality of Access to Healthcare” in Johan Mackenbach & Martijntje Bakker, eds, Reducing Inequalities in Health: A European Perspective (London, UK: Routledge, 2002) 169; Anna M. Rodney & Peter S. Hill, “Achieving Equity Within Universal Health Coverage: A Narrative Review of Progress and Resources for Measuring Success” (2014) 13 Intl J for Equity in Health 72 .

15 J. Emilio Carrillo et al, “Defining and Targeting Health Care Access Barriers” (2011) 22 J Health Care for Poor & Underserved 562.

16 See e.g. Angela Kalich, Lyn Heinemann & Setareh Ghahari, “A Scoping Review of Immigrant Experience of Health Care Access Barriers in Canada” (2016) 18 J Immigrant & Minority Health 697; Jennifer Asanin & Kathi Wilson, “‘I Spent Nine Years Looking for a Doctor’: Exploring Access to Health Care Among Immigrants in Mississauga, Ontario, Canada” (2008) 66 Soc Science & Medicine 1271; Stefan Priebe et al, “Good Practice in

256 countries would continue to fall short of fulfilling migrants’ right to health care even if they equip migrants with morally required health care coverage.

Especially, Western receiving states must address health care access barriers facing migrants that are the direct result of their policy choices. One form of such access barriers stems from immigration rules that penalize migrants for health care utilization. For instance, as mentioned in Chapter 2, a number of Western receiving countries have at one point or another imposed a legal obligation on health care practitioners to report undocumented migrant patients to immigration officials. Such reporting requirements blur the line between health care provision and immigration law enforcement. In so doing, they instill in undocumented migrants “reasonable fear of detection and arrest” and cause these migrants to think twice before seeking medical attention.17

Similarly, immigration policies have been used by Western receiving countries to disincentivize lawful migrants from accessing health care benefits that they are entitled to. Take the U.S. government’s recent amendment to its “public charge rule” as an example. According to a regulation announced in August 2019, migrants in the U.S., with a few exceptions, may now be deemed inadmissible for being a public charge if they receive non-cash government benefits, including Medicaid, for a total of twelve months out of any given three-year period.18 As the primary target of this new regulation, temporary migrants who are looking to extend their stay in the country or to apply for permanent resident status are likely to refrain from making use of their Medicaid coverage in order to avoid jeopardizing the outcome of their immigration applications. But the negative impact of the public charge rule on health care access is expected to spill into other migrant groups. As Wendy Parmet cautioned, “[t]he rule’s complexity, and the

Health Care for Migrants: Views and Experiences of Care Professionals in 16 European Countries” (2011) 11 BMC Public Health 187 .

17 Francois Crepeau & Bethany Hastie, “The Case for Firewall Protections for Irregular Migrants” (2015) 17 Eur J Migr & L 157 at 172.

18 Inadmissibility on Public Charge Grounds, 84 Fed Reg 41292 (2019) (to be codified at 8 CFR §§ 103, 212, 213, 214, 245, 248).

257 heated environment in which it is being promulgated, compound the risk that the rule’s chill will reach far wider than its actual provisions.”19

Undoubtedly, there are other ways that Western receiving countries’ immigration policies have been, and can be, employed to obstruct migrants’ timely access to legally entitled health care. It would not be difficult to imagine, for example, migrants being made to undergo arduous administrative requirements pursuant to immigration rules before their health care entitlement can be effected. Such deleterious interplay between receiving countries’ immigration and health care rules warrant closer study if there is any chance of migrants’ right to health being fully realized. Particular attention should be directed to strategies for circumventing restrictive immigration rules as a way to bridge the gap between migrants’ health care entitlement and access in the event that pertinent policy changes are not forthcoming. On this point, it is notable that attempts have been made by certain receiving communities to create a “firewall” between a state’s immigration enforcement and service provision arms. Inter alia, municipalities and regional governments in several Western countries have issued identification documents to all their residents irrespective of immigration statuses with the view to facilitate migrants’ service access.20 Some have adopted “sanctuary laws” that aim to ensure information relating to patients’ immigration status will not be gathered during health care provision, and any such data, if collected, will not be shared with immigration officials.21 Future studies should keep abreast of these strategies and assess their effectiveness such that best practices may be identified where appropriate.

7.2.3 Cultivating Solidarity with International Migrants

Another issue that necessitates more thorough exploration than I can accommodate in this dissertation concerns the mechanisms of solidarity building. Solidarity, particularly at the societal level, as I have illustrated, is central to the justification of migrants’ health care

19 “The Trump Administration’s New Public Charge Rule: Implications for Health Care & Public Health” (13 August 2019), Health Affairs (blog), online: .

20 Bradford H. Gray & Ewout van Ginneken, Health Care for Undocumented Migrants: European Approaches (New York: The Commonwealth Fund, 2012).

21 Crepeau & Hastie, supra note 17 at181-182.

258 entitlement in contemporary Western liberal democracies. By motivating individuals who are bounded thereby to collaborate, including to redistribute health care resources among themselves, it legitimizes equal health care entitlement between citizens of receiving countries and ordinarily resident migrants qua societal members. How is this solidarity between societal members cultivated and maintained? Recall that in Chapter 5, I drew on the work of Émile Durkheim, T.H. Marshall, and their followers to reason the emergence of solidarity between societal members as being a result of members’ mutually recognized commonalities as well as their collective pursuit of social advancement. Despite resting on solid theoretical grounds, however, little is known about these two pathways of solidarity building among societal members from the perspective of empiricism.22 Do they contribute equally to the formation of social solidarity or does one play a more influential role than the other? How do these avenues for building solidarity unfold in practice? And how may they vary from one Western receiving society to another and over time? To the extent that solidarity faces constant attack from forces of social exclusion, such empirical inquiries will be key to identifying strategies—including relevant law and/or policy reform—for ensuring the inclusiveness of Western receiving countries’ universal health care programs for ordinarily resident migrants.

At the same time, where the relationship between migrants and members of Western receiving societies currently falls short of the intensity of solidarity, as is the case with non-member migrants, expansion of public health care coverage for these migrants beyond what morally flows from their territorial presence would likely come up against significant pushback from the citizenry. And this would remain the case until the connection between the two groups deepens and becomes solidaristic in nature. How can this be achieved? Can the mechanisms of building solidarity among societal members be effectively transposed to the dealings between members and non-members? If so, how can a shared identity be fostered between these individuals, and what kind of institutional structures should be put in place to facilitate the cooperation and joint decision-making between them? Or, must solidarity outside the bounds of societal membership be developed through other means? And what roles can law and policy play in these respects? Again, a cursory scan of the literature reveals little by way of answer. This is a problem

22 Gal Ariely, “Constitutional Patriotism, Liberal Nationalism and Membership in the Nation: An Empirical Assessment” (2011) 46 Acta Politica 294 at 295.

259 especially for proponents of the humanist approach to migrant health care. If the humanist view is to have any success in generating buy-in from the public, a concerted effort to remedy this gap in the literature, thus shedding light on how to better bridge the divide between “us” and “them,” represents a crucial step in the way forward.

Bibliography

LEGISLATION: CANADA

An Act to amend The Immigration Act, SC 1919, c 25.

Canada Health Act, RSC 1985, c C-6.

Canadian Citizenship Act, RSC 1970, c C-19.

Commitment to the Future of Medicare Act, 2004, SO 2004, c 5.

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

Hospital and Medical Services Program for International Students Employed as Teaching or Research Assistants Regulations, NS Reg 92/98.

Hospital and Medical Services Program for Persons on Student Visas Regulations, NS Reg 67/78.

Hospital Insurance and Diagnostic Services Act, S.C. 1957, c. 28.

Immigration Act, 1976-77, SC 1976-77, c 52.

Immigration Act, SC 1910, c 27.

Immigration Act, SC 1952, c 42.

Immigration and Refugee Protection Act, SC 2001, c 27.

Immigration and Refugee Protection Regulations, SOR/2002-227.

Medical and Health Care Services Regulation, BC Reg 426/97.

Medical Care Act, S.C. 1966, c. 64.

Medical Care Insurance Beneficiary and Administration Regulations, RRS, c S-29, Reg 13.

Medicare Protection Act, RSBC 1996, c 286.

260 261

NB Reg 84-20.

Order Respecting the Interim Federal Health Program, 2012, S.I./2012-26, C. Gaz. 2012.II.1135.

PEI Reg EC453/96.

Regulation respecting eligibility and registration of persons in respect of the Régie de l’assurance maladie du Québec, RRQ, c A-29.

Regulation respecting the selection of foreign nationals, RRQ, c I-0.2.

Residency and Registration Regulation, Man Reg 54/93.

RRO 1990, Reg 552.

RRO 1994, Reg 490.

The Canadian Citizenship Act, SC 1946, c 15.

LEGISLATION: FOREIGN

Asylum and Immigration Act 1996 (UK), 1996, c. 49.

Asylum and Immigration Appeals Act 1993 (UK), 1993, c 23.

Australian Citizenship Act 2007 (Cth).

British Nationality Act 1981 (UK), c 61.

Citizenship Act 1977 (NZ), 1977/61.

Code civil (France).

Code of Social Law (Germany).

Consolidated Text on Immigration, Legislative Decree No. 286 of 25 July 1998, art 34 (Italy).

262

Health Insurance Act 1973 (Cth).

Immigration Act 2009 (NZ), 2009/51.

Immigration Act 2014 (UK), 2014, c 22.

Immigration and Asylum Act 1999 (UK), 1999, c 33.

Immigration and Nationality Act, 8 USC §1427

Inadmissibility on Public Charge Grounds, 84 Fed Reg 41292 (2019) (to be codified at 8 CFR §§ 103, 212, 213, 214, 245, 248).

Measures Against Trafficking in Persons, Law No. 228 of 11 August 2003, art 13 (Italy).

National Health Service (Amendment) Act, 1949 (UK), 12, 13 & 14 Geo VI, c 93.

National Health Service Act 1977 (UK), 1997, c 49.

Nationality Act, 22 July 1913, Reich Law Gazette I 583 (Germany).

Order Under Subsection 6(1) of the Health Insurance Act 1973 (Cth).

Personal Responsibility and Work Opportunity Reconciliation Act, 8 USC § 1613(a) (1996).

Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth).

The Immigration (Leave to Enter and Remain) Order 2000 (UK), 2000 No. 1161.

The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2004 (UK), SI 2004/614.

The National Health Service (Charges to Overseas Visitors) Regulations 1982 (UK), SI 1982/795.

The National Health Service (Charges to Overseas Visitors) Regulations 1989 (UK), SI 1989/306.

263

The National Health Service (Charges to Overseas Visitors) Regulations 2011 (UK), SI 2011/1556.

The National Health Service (Charges to Overseas Visitors) Regulations 2015 (UK), SI 2015/238.

U.S., Cal. Initiative Statute Prop. 187, Illegal Aliens. Ineligibility for Public Services. Verification and Reporting, 1994.

JURISPRUDENCE

Athey v Leonati, [1996] 3 SCR 458.

Benner v Canada (Secretary of State), [1997] 1 SCR 358.

Canadian Doctors for Refugee Care v Canada (AG) (2014), 28 Imm LR (4th) 1.

Carter v Canada (AG), 2015 SCC 5.

Clarken v Ontario (Health Insurance Plan) (1998), 109 OAC 363.

Companioni v. Canada (Minister of Citizenship and Immigration), [2011] 1 FCR 3

Ekkebus v Lauinger (1994), 22 CCLT (2d) 148.

Eldridge v British Columbia (AG), [1997] 3 SCR 624.

Hernadi v British Columbia (Minister of Health) (1986), 10 BCLR (2d) 81.

Hilewitz v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 706.

Irshad (Litigation guardian of) v Ontario (Ministry of Health) (2001), 55 OR (3d) 43.

Larbi-Odam v MEC for Education (North-West Province), [1997] ZACC 16.

Lavoie v Canada, [2002] 1 SCR 769.

264

Law Society British Columbia v Andrews, [1989] 1 SCR 143.

League of United Latin American Citizens v Wilson, 997 F Supp 1244 (CD Cal 1997).

Levene v Commissioners of Inland Revenue, [1928] A.C. 217.

MacPherson v MacPherson (1977), 13 OR (2d) 233.

Manassian v Alberta (Minister of Health) (1990), 65 DLR (4th) 744.

Milina v Bartsch (1985), 49 BCLR (2d) 33.

Minor v Happersett, 88 US 162 (1875).

Parkland (Country) No. 31 v Stetar, [1975] 2 SCR 884.

Plyler v Doe, 457 US 202.

R v Barnet London Borough Council, Ex parte Shah, [1982] UKHL 14, [1983] AC 309.

R(YA) v. Secretary of State for Health, [2009] EWCA Civ 225.

Rashid v Canada (Minister of Citizenship and Immigration) (2010), 88 Imm LR (3d) 165.

Singh v Minister of Employment and Immigration, [1985] 1 SCR 177.

SP v Ontario Health Insurance Plan, (19 August 1999), 5399E (OHSARB).

Thomson v Canada (Minister of National Revenue), [1946] SCC 209.

Toussaint v Canada (AG) (2011), 100 Imm LR (3d) 175.

Toussaint v Ontario (Minister of Health and Long-Term Care), 2010 HRTO 2102.

Winner v. S.M.T. (Eastern) Ltd, [1951] SCR 887.

Winterhaven Stables Ltd v Canada (AG) (1988), 53 DLR (4th) 413.

Yick Wo v Hopkins, 118 US 356 (1886).

265

INTERNATIONAL MATERIALS

Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 56; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3.

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

Convention Relating to the Status of Stateless Persons, 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960).

Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, C.E.T.S. No. 197 (entered into force 1 February 2008).

EC, Charter of Fundamental Rights of the European Union, [2012] OJ, C 326/02.

General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN CESCROR, 22nd Sess., UN Doc. E/C.12/2000/4 at 127 (2000).

General Comment No. 19: The Right to Social Security, UN CESCROR, 39th Sess., UN Doc. E/C.12/GC/19 (2008).

General Comment No. 2: Implementation of Article 2 by State Parties, UN CATOR, 39th Sess., UN Doc. CAT/C/GC/2 (2008).

General Comment No. 35: Article 9 (Liberty and Security of Person), UN HRCOR, 112th Sess., UN Doc. CCPR/C/GC/35 (2014).

General Comment No. 36: Article 6 (Right to Life), UN HRCOR, 124h Sess., UN Doc. CCPR/C/GC/36 (2018).

Glossary on Migration, No. 34 (Geneva: International Organization for Migration, 2019).

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).

266

International Covenant on Civil and Political Rights, 16 December 1966, 993 U.N.T.S. 171, 6 I.L.M. 368.

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, 6 ILM 360.

Recommendations on Statistics of International Migration: Revision 1, Statistics Paper Series M, No. 58, Rev. 1 (New York: United Nations, 1998).

UN Department of Economic & Social Affairs, International Migration Report 2017, ST/ESA/SER.A/403 (New York: UN, 2017).

Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.

SECONDARY MATERIAL

“Aids, Education and the Year 2000!” Woman’s Own (31 October 1987), online: Margaret Thatcher Foundation .

“All Family Members to Get Individual OHIP Cards Featuring Health Histories” Ottawa Citizen (22 March 1990) A5.

“Annual Checkups Survive OHIP Cuts”, Windsor Star (18 February 1994) D9.

“Annual Detention Statistics—2012-2018” (25 October 2018), online: Canada Border Services Agency .

“Applying for a Card” (last visited 13 February 2020), online: New Brunswick Department of Health .

“B.C. Risks Reputation” The [Montreal] Gazette (14 April 1986) B2.

“Backgrounder—Applying for a Parent and Grandparent Super Visa” (1 December 2011), online: Government of Canada .

“Business Applaud Changes to Allow Temporary Foreign Workers to Stay as Long as Permits Renewed”, National Post (15 December 2016), online: .

267

“Canada Gets Tough on ‘Benefits Shoppers’” The Hamilton Spectator (4 January 1993) A3.

“Conservative Government Aims to Resettle 10,000 Syrian Refugees by September 2016”, CBC News (19 September 2015), online: .

“Contract for the Employment in Canada of Seasonal Agricultural Workers from Mexico – 2020” (last modified 7 February 2020), online: Government of Canada .

“Country Reports on Asylum in 23 Countries” (last visited 13 February 2020), online: Asylum Information Database .

“Criminalization of Illegal Entry Around the World” (20 September 2019), online: Law Library of Congress .

“Danger to Public Health or Public Safety” (last modified 15 May 2013), online: Government of Canada .

“Deed between the Commonwealth of Australia as Represented by the Department of Health and XXX in Relation to the Provision of Overseas Student Health Cover” (last visited 13 February 2020), online: Department of Health .

“Eligibility for Québec Health Insurance Plan” (last visited 13 February 2020), online: Régie de l’assurance maladie du Québec .

“Evaluating Migrant Worker Rights in Canada: 2018” (May 2018), online: Canadian Council for Refugees .

“Facts and Figures 2017: Immigration Overview – Permanent Residents,” online: Government of Canada .

“Facts and Figures 2017: Immigration Overview – Temporary Residents,” online: Government of Canada .

“Health Care Coverage for Temporary Residents” (last visited 13 February 2020), online: Government of Alberta .

“Health Care for Refugees” (last visited 13 February 2020), online: Canadian Association of Refugee Lawyers .

“IMTJ Analysis of 2017 India Medical Tourist Data” (20 September 2018), online: International Medical Travel Journal .

268

“Instruction Sheet to Accompany Employment Contract” (last visited 20 June 2020), online: Government of Canada .

“International Students” (21 June 2019), online: Newfoundland and Labrador Department of Health and Community Services .

“K-Research: Foreigners Key for Hospitals”, Bangkok Post (13 June 2018), online: .

“Labor Force Statistics from the Current Population Survey” (7 February 2020), online: U.S. Bureau of Labor Statistics .

“Liberals to Restore Refugee Health Care within Months: Immigration Minister”, CTV News (7 November 2015), online: .

“Manitoba Cuts International Students’ Health Coverage” The Medicine Hat News (23 March 2018) 5.

“Medicare for All?” Wall Street Journal (29 October 2007) A18.

“Ontario Considering Issuing Individual Health ID Numbers” Ottawa Citizen (13 January 1988) A3.

“Ontario will Curb OHIP for Visiting Workers, Students” Toronto Star (2 April 1994) A9.

“Open Work Permits for Vulnerable Workers” (last modified 6 December 2019), online: Government of Canada .

“Operational Bulletin 111 – April 27, 2009” (27 April 2009), online: Government of Canada .

“Ottawa to Pay Medical Bills for Refugee Claimants” Kingston Whig-Standard (13 June 1994) 3.

“Overseas Student Health Cover” (last visited 13 February 2020), online: Commonwealth Ombudsman (Private Health Insurance) .

“Pay for UK Healthcare as Part of Your Immigration Application” (last visited 13 February 2020), online: GOV.UK .

“PICUM Bulletin ─ 12 July 2013” (12 July 2013), online: PICUM .

“Program to Strengthen and Modernize the Health Sector” (1995), online (pdf): Inter-American Development Bank .

269

“Prop. 187 Approved in California” (1994) 1:11 Migration News 1, online: .

“Provincial Auditor’s Report: Archer Lambastes OHIP for Outdated File System” Windsor Star (25 November 1987) A12.

“Refused Asylum Seekers: Entitlement to NHS Maternity Care” (last visited 13 February 2020), online: Maternity Action .

“Saskatchewan Health Services Card Application” (last visited 13 February 2020), online: Saskatchewan Ministry of Health .

“Seasonal Workers Provide Necessary Agricultural Labour”, Flamborough Review (3 May 2013).

“Six Selection Factors—Federal Skilled Workers (Express Entry)” (24 October 2017), online: Government of Canada .

“Spain Cuts Education and Health Care Spending”, CBC News (20 April 2012), online: .

“Spain to Reinstate Primary Healthcare for Illegal Immigrants” Reuters (31 March 2015), online: .

“Supporting Documentation Required to Accompany Your Health Card Application” (last visited 13 February 2020), online: eHealth Saskatchewan .

“Temporary Measures for the Interim Federal Health Program” (last modified 4 November 2014), online: Government of Canada .

“Temporary Public Policy Regarding Excessive Demand on Health and Social Services” (last modified 1 June 2018), online: Government of Canada .

“Working Visa Applicants” (last visited 13 February 2020), online: Commonwealth Ombudsman (Private Health Insurance) .

Abizadeh, Arash, “Democratic Theory and Border Coercion: No Right to Unilaterally Control your Own Borders” (2008) 36:1 Political Theory 37.

270

———, “Does Collective Identity Presuppose an Other? On the Alleged Incoherence of Global Solidarity” (2005) 99 American Political Science Rev 45.

———, “Liberal Egalitarian Arguments for Closed Borders: Some Preliminary Critical Reflections” (2006) 4:2 Ethics & Economics 10.

Adranda, Elizabeth & Elizabeth Vaquera, “Racism, the Immigration Enforcement Regime, and the Implications for Racial Inequality in the Lives of Undocumented Young Adults” (2015) 1:1 Current (& Future) Theoretical Debates in Sociology of Race & Ethnicity 88.

Ahmed, Rabia, “Access to Healthcare Services During Incarceration among Female Inmates” (2016) 12:4 Intl J Prisoner Health 204.

Akin, John, Nancy Birdsall & David de Ferranti, Financing Health Services in Developing Countries: An Agenda for Reform (Washington, D.C.: World Bank, 1987).

Alboim, Naomi & Karen Cohl, Shaping the Future: Canada’s Rapidly Changing Immigration Policies (Toronto: The Maytree Foundation, 2012).

Álvarez, Melisa Martínez, Rupa Chanda & Richard Smith, “How is Telemedicine Perceived? A Qualitative Study of Perspectives from the UK and India” (2011) 7 Globalization & Health 17.

Antonipillai, Valentina et al, “Impacts of the Interim Federal Health Program Reforms: A Stakeholder Analysis of Barriers to Health Care Access and Provision for Refugees” (2017) 108:4 Can J Public Health e435.

Arat-Koc, Sedef, “Neo-liberalism, State Restructuring and Immigration: Changes in Canadian Policies in the 1990s” (1999) 34:2 J Can Studies 31.

Arendt, Hannah, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973).

Ariely, Gal, “Constitutional Patriotism, Liberal Nationalism and Membership in the Nation: An Empirical Assessment” (2011) 46 Acta Politica 29.

Armada, Francisco, Carles Muntaner & Vicente Navarro, “Health and Social Security Reforms in Latin America: The Convergence of the World Health Organization, the World Bank, and Transnational Corporations” (2001) 31 Intl J Health Services 729.

Arrow, Kenneth J, “Uncertainty and the Welfare Economics of Medical Care” (1963) 53 American Economic Rev 941.

Arya, Neil, Josephine McMurray & Meb Rashid, “Enter at Your Own Risk: Government Changes to Comprehensive Care for Newly Arrived Canadian Refugees” (2012) 184:17 CMAJ 1875.

Asanin, Jennifer & Kathi Wilson, “‘I Spent Nine Years Looking for a Doctor’: Exploring Access to Health Care Among Immigrants in Mississauga, Ontario, Canada” (2008) 66 Soc Science & Medicine 1271.

271

Ashcroft, Richard E, Alastair V Campbell & Susan Jones, “Solidarity, Society and the Welfare State in the United Kingdom” (2000) 8 Health Care Analysis 377.

Audit of the Control Framework for the Interim Federal Health Program (Ottawa: Citizenship and Immigration Canada, 2004).

Austl, Commonwealth, Department of Home Affairs, Immigration Detention and Community Statistics Summary, 31 May 2019, online: .

———, Immigration Detention Statistics Summary, 31 July 2013, online: .

Authier, Philip & Samana Siddiqui, “Refugee Claimants to Lose Health Benefits” The [Montreal] Gazette (15 June 1996) A1.

Bakewell, Francis et al, “Use of the Emergency Department by Refugees Under the Interim Federal Health Program: A Health Records Review” (2018) 13:5 PLoS ONE e0197282.

Bamezai, Anil & Glenn Melnick, “Marginal Cost of Emergency Department Outpatient Visits: An Update Using California Data” (2006) 44:9 Medical Care 835.

Banting, Keith & Will Kymlicka, “Introduction,” in Keith Banting & Will Kymlicka, eds, The Strains of Commitment: The Political Sources of Solidarity in Diverse Societies (Oxford: Oxford University Press, 2017) 1.

Banting, Keith et al, “Beyond National Identity: Liberal Nationalism, Shared Membership and Solidarity” in Gina Gustavsson & David Miller, eds, Liberal Nationalism and Its Critics: Normative and Empirical Questions (Oxford, UK: Oxford University Press, 2020) 205.

Barnes, Steve, Vanessa Abban & Alexandra Weiss, Low Wages, No Benefits: Expanding Access to Health Benefits for Low Income Ontarians (Toronto: Wellesley Institute, 2015).

Barone, Michael & Lynn Scarlett, “Missing the Boat? Was the ‘60s Disdain for Bigness, Centralization, & Conformity Healthy Until It Went Awry?” (1997) 8:3 American Enterprise 42.

Barrett, Alan & Yvonne McCarthy, “Immigrants and Welfare Programmes: Exploring the Interactions Between Immigrant Characteristics, Immigrant Welfare Dependence, and Welfare Policy” (2008) 24:3 Oxford Rev Economic Policy 543

Basu, Sanjay et al, “Comparative Performance of Private and Public Healthcare Systems in Low- and Middle-Income Countries: A Systematic Review” (2012) 9:6 PLoS Medicine 19.

Bauder, Harald, “The Economic Case for Immigration: Neoliberal and Regulatory Paradigms in Canada’s Press” (2008) 82 Studies in Political Economy 131.

Baxter, Jamie, “Precarious Pathways: Evaluating the Provincial Nominee Programs in Canada” (6 July 2010), online: Law Commission of Ontario .

272

Beitz, Charles R, “International Liberalism and Distributive Justice: A Survey of Recent Thought” (1999) 51 World Politics 269.

Belluz, Julia, “Health-care Coverage for Refugees is About to Change in Canada” Mclean’s (28 June 2012), online: .

Benoit, Cecilia et al, “Medical Dominance and Neolibearlisation in Maternal Care Provision: The Evidence from Canada and Australia” (2010) 71 Soc Science & Medicine 475.

Berinstein, Carolina et al, “Access Not Fear”: Non-Status Immigrants & City Services (Toronto: n.p., 2006).

Berk, Marc L et al, “Health Care Use among Undocumented Latino Immigrants” (2000) 19:4 Health Affairs 51.

Bertossi, Christophe, France: The State Strives to Shape “Chosen” Immigration (Rome: Centro Studi di Politica Internazionale, 2008), online: CeSPI .

Betz, Hans-George, “The New Politics of Resentment: Radical Right-Wing Populist Parties in Western Europe” (1993) 25 Comparative Politics 413

Bhuyan, Rupaleem & Tracy Smith-Carrier “Constructions of Migrant Rights in Canada: Is Subnational Citizenship Possible?” (2012) 16 Citizenship Studies 203.

Bilger, Veronika et al, Health Care for Undocumented Migrants in Switzerland: Policies, People, Practices (Vienna: International Center for Migration Policy Development, 2011).

Biswas, Dan et al, “Access to Health Care for Undocumented Migrants from a Human Rights Perspective: A Comparative Study of Denmark, Sweden, and the Netherlands” (2012) 14 Health & Hum Rts 49.

Blank, Yishai, “Spheres of Citizenship” (2007) 8 Theor Inq L 411.

Bloch, Alice, “A New Era or More of the Same? Asylum Policy in the UK” (2000) 13 Journal of Refugee Studies 29.

———, “Living in Fear: Rejected Asylum Seekers Living as Irregular Migrants in England” (2014) 40 J Ethnic & Migration Studies 1507.

Bobadilla, Andrea et al, “Ontario Healthcare Coverage Eligibility Among New Permanent Residents: A Scoping Review” (2017) 15 J Immigrant & Refugee Studies 384.

Bohuslawsky, Maria, “Hospitals Helpless Against OHIP Fraud Artists” Ottawa Citizen (20 March 1990) B2.

Bonin, Holger, Bernd Raffelhüschen & Jan Walliser, “Can Immigration Alleviate the Demographic Burden?” 57 (2000) FinanzArchiv 1.

273

Boras, Alan, “Refugees Get Medicare” Calgary Herald (19 December 1989).

Borjas, George J, “Immigration and Welfare Magnets” (1999) 17:4 J Labour Economics 607; Marvin E Dodson, “Welfare Generosity and Location Choices Among New United States Immigrants” (2001) 21 Intl Rev L & Econ 47.

Bosniak, Linda, “Being Here: Ethical Territoriality and the Rights of Immigrants” (2007) 8 Theor Inq L 389.

———, “Ethical Territoriality and the Rights of Immigrants” (2008) 1 Amsterdam L Forum 1.

———, “Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention” (1991) 25 Intl Migration Rev 737.

———, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006).

Boyle, Christina, “More EU border controls” Los Angeles Times (15 September 2015) A4.

Boyle, Theresa, “Health Ministers Tackle Cuts to Refugee Care: Ottawa Shows No Sign of Budging on Decision to Reduce Coverage”, Toronto Star (4 October 2013) A3.

Bragg, Rosalind & Rayah Feldman, “‘An Increasingly Uncomfortable Environment’: Access to Health Care for Documented and Undocumented Migrants in the UK” in Rachel Sabates- Wheeler & Rayah Feldman, eds, Migration and Social Protection: Claiming Social Rights Beyond Borders (New York: Palgrave Macmillan, 2011) 143.

Braveman, Paula A et al, “Health Disparities and Health Equity: The Issue Is Justice” (2011) 101 American J Public Health S149.

British Columbia, Legislative Assembly, Debates (Hansard), (10 April 1986) at 7679 (Jim Nielsen).

Brown, Jennifer, “Colorado Immigrants Forced to Wait Until the Brink of Death to Get Kidney Care” The Denver Post (7 February 2017), .

Brown, Lawrence D & David P Chinitz, “Saltman on Solidarity” (2015) 4 Israel J Health Policy Research 27.

Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992).

Bump, Jesse B, “The Long Road to Universal Health Coverage: Historical Analysis of Early Decisions in Germany, the United Kingdom, and the United States” (2015) 1:1 Health Systems & Reform 28.

274

Butcher, Andrew, Paul Spoonley & Andrew Trlin, Being Accepted: The Experience of Discrimination and Social Exclusion by Immigrants and Refugees in New Zealand (Palmerston North, NZ: Massy University New Settlers Programme, 2006).

Calder, Moira J et al, “International Students Attending Canadian Universities: Their Experiences with Housing, Finances, and Other Issues” (2016) 46:2 Can J Higher Education 92.

Calhoun, Craig, “Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere” (2002) 14:1 Public Culture 147.

Canada, House of Commons Debates, 27th Parliament, 1st Sess., Vol. VII (12 July 1966).

Canada, Parliamentary Information and Research Service, “Temporary Foreign Workers”, by Melissa Pang, Publication No 2013-11-E (Ottawa: Library of Parliament, 2013).

Canadian Association of Refugee Lawyers, Press Release, “Doctors and Lawyers Challenge Federal Health Cuts to Refugees” (25 February 2013), online: CARL .

Carballo, Manuel, Jose Julio Divino & Damir Zeric, “Migration and Health in the European Union” (1998) 3 Tropical Medicine & Intl Health 936.

Carens, Joseph H, “Aliens and Citizens: The Case for Open Borders” (1987) 49 Rev Politics 251

———, The Ethics of Immigration (Oxford: Oxford University Press, 2013).

Carithers, Martha W, “Conceptualization and Analytic Unit in Durkheim” (1977) 2 Mid- American Rev Sociology 71.

Carrillo, J. Emilio et al, “Defining and Targeting Health Care Access Barriers” (2011) 22 J Health Care for Poor & Underserved 562.

Castles, Stephen, “Guestworkers in Europe: A Resurrection?” (2006) 40 Intl Migration Rev 741.

Caulford, Paul & Jennifer D’Andrade, “Health Care for Canada’s Medically Uninsured Immigrants and Refugees: Whose Problem Is It?” (2012) 58 Can Family Physician 725.

Caulford, Paul & Yasmin Vali, “Providing Health Care to Medically Uninsured Immigrants and Refugees” (2006) 174:9 CMAJ 1253.

Chan, Kit Yee, Mark Stoové & Daniel Reidpath, “Stigma, Social Reciprocity and Exclusion of HIV/AIDS Patients with Illicit Drug Histories: A Study of Thai Nurses’ Attitudes” (2008) 5 Harm Reduction J 28.

Chavez, Leo R, “Undocumented Immigrants and Access to Health Services: A Game of Pass the Buck” (1984) 12:4/5 Migration Today 20.

Cheliotis, Leonidas K, “Behind the Veil of Philoxenia: The Politics of Immigration Detention in Greece” (2013) 10:6 European J Criminology 725.

275

Chen, Y.Y. Brandon & Colleen M. Flood, “Medical Tourism’s Impact on Health Care Equity and Access in Low- and Middle-Income Countries: Making the Case for Regulation” (2013) 41 JL Med & Ethics 286.

Chen, Y.Y. Brandon, Vanessa Gruben & Jamie Chai Yun Liew, “‘A Legacy of Confusion’: An Exploratory Study of Service Provision under the Reinstated Interim Federal Health Program” (2018) 34:2 Refuge 94.

Citizenship and Immigration Canada, Canada Facts and Figures 2012: Immigration Overview— Permanent and Temporary Residents (Ottawa: Ministry of Public Works and Government Services Canada, 2013).

———, Facts and Figures 2014: Immigration Overview—Permanent and Temporary Residents (Ottawa: Public Works and Government Services Canada, 2016).

———, Facts and Figures 2016: Immigration Overview—Permanent Residents (Ottawa: Public Works and Government Services Canada, 2018).

———, News Release, “Government of Canada to cut backlog and wait times for family reunification – Phase I of Action Plan for Faster Family Reunification” (4 November 2011).

———, News Release, “Reform of the Interim Federal Health Program Ensures Fairness, Protects Public Health and Safety” (25 April 2012), online: Government of Canada .

———, Operational Manual ─ Reference, IR 3, Medical (N.p., 2010) [unpublished, on file with author].

Clark, Brietta R, “The Immigrant Health Care Narrative and What It Tells Us About the U.S. Health Care System” (2008) 17 Ann Health L 229.

Cleveland, Janet et al, “Symbolic Violence and Disempowerment as Factors in the Adverse Impact of Immigration Detention on Adult Asylum Seekers’ Mental Health” (2018) 63 Intl J Public Health 1001.

Coenders Marcel & Peer Scheepers, “Support for Ethnic Discrimination in the Netherlands 1979–1993: Effects of Period, Cohort and Individual Characteristics” (1998) 14 European Sociological Rev 405.

Cohen, I Glenn, “Medical Tourism: The View from Ten Thousand Feet” (2010) 40:2 Hastings Center Report 11.

———, Patients with Passports: Medical Tourism, Law and Ethics (New York: Oxford University Press, 2015).

Cohen, Tobi, “‘Bogus Refugees’ Sap Health Care” Vancouver Sun (1 August 2012) B2.

276

———, “Parent, Grandparent Immigration Program Reopens” [Regina] Leader Post (3 January 2014) B8.

Colino, Stacey, “The Fallout from Proposition 187” (1995) 22 Human Rights 16.

Correa-Velez, Ignacio, Sandra M. Gifford & Sara J. Bice, “Australian Health Policy on Access to Medical Care for Refugees and Asylum Seekers” (2005) 2 Australia & New Zealand Health Policy 23.

Costigan, Catherine, Sabine Lehr & Sheena Miao, “Beyond Economics: Broadening Perspectives on Immigration to Canada” (2016) 48 Can Ethnic Studies 19.

Cox, Adam B & Adam Hosein, “What Does Equality for Immigrants Require?” (2013) NYU School of Law Public Law Research Paper No 11-67.

Crepeau, Francois & Bethany Hastie, “The Case for Firewall Protections for Irregular Migrants” (2015) 17 Eur J Migr & L 157.

Cronin, Mark, “Political and Legal Context” in Mark Cronin, Karen Argent & Chris Collett, eds, Poverty and Inclusion in Early Years Education (New York: Routledge, 2017) 34.

Crowley, John, “The National Dimension of Citizenship in T.H. Marshall” (1998) 2 Citizenship Studies 165.

Cuadra, Carin Bjorngren, “Right of Access to Health Care for Undocumented Migrants in EU: A Comparative Study of National Policies” (2011) 22 European J Public Health 267.

Cutler, David & Richard Zeckhauser, “Adverse Selection in Health Insurance” in Alan Garber, ed, Frontiers in Health Policy Research, vol. 1 (Cambridge: MIT Press, 1998).

Cylus, Jonathan & Irene Papanicolas, “An Analysis of Perceived Access to Health Care in Europe: How Universal is Universal Coverage?” (2015) 119:9 Health Policy 1133.

Daniels, Norman & Keren Ladin “Immigration and Access to Health Care” in John D. Arras, Elizabeth Fenton & Rebecca Kukla, eds, The Routledge Companion to Bioethics (New York: Routledge, 2015) 56.

Daniels, Norman, “Health-Care Needs and Distributive Justice” (1981) 10:2 Philosophy & Public Affairs 146.

———, “Justice, Health, and Healthcare” (2001) 1:2 American J Bioethics 2.

Day, Kate & Paul White, “Choice or Circumstance: The UK as the Location of Asylum Applications by Bosnian and Somali Refugees” (2001) 55 GeoJournal 15. de Ferranti, David, Paying for Health Services in Developing Countries: An Overview (Washington, D.C.: World Bank, 1985). de Haan, Arjan, “‘Social Exclusion’: An Alternative Concept for the Study of Deprivation?” (1998) 29 IDS Bull 10.

277

De Lew, Nancy, “The First 30 Years of Medicare and Medicaid” (1995) 274:3 JAMA 262.

De Maio, Fernando & Eagan Kemp, “The Deterioration of Health Status among Immigrants to Canada” (2010) 5:5 Global Public Health 462.

DeLuca, Lawrence A, Marylyn M. McEwen & Samuel M. Keim, “United States─Mexico Border Crossing: Experiences and Risk Perceptions of Undocumented Male Immigrants” (2010) 12 J Immigrant & Minority Health 113.

Demmers, Jolle & Sameer Mehendale, “Neoliberal Xenophobia: The Dutch Case” (2010) 35 Alternatives 53.

Denman, James & Paul McDonald, “Unemployment Statistics From 1881 to the Present Day” (January 1996) Labour Market Trends 5.

Devereaux, PJ et al, “A Systematic Review and Meta-Analysis of Studies Comparing Mortality Rates of Private For-Profit and Private Not-For-Profit Hospitals” (2002) 166 CMAJ 1399.

Di Matteo, Livio, “The Determinants of the Public-Private Mix in Canadian Health Care Expenditure: 1975-1996” (2000) 52:2 Health Policy 87.

Dolgin, Janet L & Katherine R Dieterich, “When Others Get Too Close: Immigrants, Class, And the Health Care Debate” (2010) 19 Cornell JL & Pub Pol’y 283.

Donovan, Kevin, “Health card abuse called ‘rat’s nest’” The Windsor Star (18 August 1993) A1.

Dorais, Louis-Jacques, “The Vietnamese in Montreal, Canada: Reflections on Intangible Capital and Immigration” (2009) 18 Asian & Pacific Migration J 231.

Dowsett, Sonya,“Spain Brings Back Free Healthcare for Illegal Immigrants” Business Insider (15 June 2018), online: .

Dungan, Peter, Tony Fang & Morley Gunderson, “Macroeconomic Impacts of Canadian Immigration: Results from a Macro Model” (2013) 51 British J Industrial Relations 174.

Durkheim, Émile, The Division of Labor in Society, trans. by George Simpson (New York: Free Press, 1933).

Dusetzina, Stacie B, Ethan Basch & Nancy L Keating, “For Uninsured Cancer Patients, Outpatient Charges Can be Costly, Putting Treatments Out of Reach” (2015) 34 Health Affairs 584.

Dwyer, James, “Illegal Immigrants, Health Care, and Social Responsibility” (2004) 34 Hasting Center Report 34.

Edwards, Adrian, “UNHCR Viewpoint: ‘Refugee’ or ‘Migrant’—Which Is Right?” (11 July 2016), online: UNHCR .

278

Elgersma, Sandra, Immigration Status and Legal Entitlement to Insured Health Services (Ottawa: Library of Parliament, 2008).

Employment and Social Development Canada, Agricultural Stream: Employment Contract, ESDC EMP5510 (2019-04-002) E.

———, Temporary Foreign Worker Program: In-home Caregiver Employer/Employee Contract, ESDC EMP5604 (2018-01-001) E.

Erskine, Toni, “Qualifying Cosmopolitanism? Solidarity, Criticism, and Michael Walzer’s ‘View from the Cave’” (2007) 44 Intl Politics 125.

Etzioni, Amitai, “Citizenship Tests: A Comparative, Communitarian Perspective” (2007) 78 Political Q 353.

Evans, Andrea et al, “The Cost and Impact of the Interim Federal Health Program Cuts on Child Refugees in Canada” (2014) 9:5 PLoS ONE e96902.

Evans, Robert G, “Information and Incentives: Peculiarities of the Health Care Market” (1972) 13 BC Studies 87.

Faraday, Fay, Made in Canada: How the Law Constructs Migrant Workers’ Insecurity (Toronto: Metcalf Foundation, 2012).

Ferguson, Derek, “OHIP Cheats Got Posh Cures at U.S. Clinics” Toronto Star (15 March 1990) A12.

Ferrer, Ana, Garnett Picot & William Craig Riddell, “New Directions in Immigration Policy: Canada’s Evolving Approach to the Selection of Economic Immigrants” (2014) 48 Intl Migration Rev 846.

Fitzpatrick, Meagan, “Don’t Bring Parents Here for Welfare, Kenney Says” CBC News (10 May 2013), online:

Flood, Colleen M & Aeyal Gross, The Right to Health at the Public/Private Divide: A Global Comparative Study (New York: Cambridge University Press, 2014).

Flood, Colleen M & Bryan Thomas, “Modernizing the Canada Health Act” (2016) 39:2 Dalhousie LJ 397.

Flood, Colleen M, International Healthcare Reform: A Legal, Economic and Political Analysis (London: Routledge, 2000).

———, “Conclusion” in Colleen M Flood, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: University of Toronto Press, 2006) 449.

Flora, Peter & Arnold Heidenheimer, eds, The Development of Welfare States in Europe and America (New Brunswick: Transaction, 1981).

279

Fortuny, Karina & Ajay Chaudry, Overview of Immigrants’ Eligibility for SNAP, TANF, Medicaid, and CHIP (Washington, D.C.: U.S. Department of Health and Human Services, 2012).

Foster, Jason, “Making Temporary Permanent: The Silent Transformation of the Temporary Foreign Worker Program” (2012) 19 Just Labour 22.

Frank, Laura et al, “Health and Healthcare Provision to Asylum Seekers and Refugees in Germany” (2017) 2:1 J Health Monitoring 22.

Friedman, Milton, Capitalism and Freedom (Chicago: University of Chicago Press, 1962).

Fujiwara, Lynn, “Immigrant Rights Are Human Rights: The Reframing of Immigrant Entitlement and Welfare” (2005) 52 Soc Problems 79.

Gagnon, Anita, “The Responsiveness of the Canadian Health Care System Towards Newcomers” in Pierre-Gerlier Forest, Gregory Marchildon & Tom McIntosh, eds, Changing Health Care in Canada: Romanow Papers, Vol. 2 (Toronto: University of Toronto Press, 2004) 349.

Galabuzi, Grace-Edward, “Social Exclusion” in Dennis Raphael, ed, Social Determinants of Health, 2d ed (Toronto: Canadian Scholars’ Press, 2009) 252.

Gates-Gasse, Erika, “‘Two Step’ Immigration: Canada’s New Immigration System Raises Troubling Issues”, The Monitor (1 October 2010), online: .

Gershon, Ilana, “Neoliberal Agency” (2011) 52:4 Current Anthropology 537.

Gibney, Matthew J, “Statelessness and the Right to Citizenship” (2009) 32 Forced Migration Rev 50.

Giuliani, Rudolph, “A Free-Market Cure for US Healthcare System”, Boston Globe (3 August 2007) A13.

Glen, Patrick J, “Health Care and the Illegal Immigrant” (2013) 23 Health Matrix 197

Goel, Ritika, “What You Need to Know about Canada’s Refugee Health Program” Huffington Post (25 December 2014), online:

Goel, Ritika, Gary Bloch & Paul Caulford, “Waiting for Care: Effects of Ontario’s 3-month Waiting Period for OHIP on Landed Immigrants” (2013) 59 Can Family Physician e269.

Goff, Kristin, “Time Out: Ontario ‘Snowbirds’ Fly Afoul of OHIP’s Tougher Residency Rules” Ottawa Citizen (14 April 1992) D1.

Goffman, Erving, Stigma: Notes on the Management of Spoiled Identity (Englewood Cliffs, N.J.: Prentice Hall, 1963).

280

Goldman, Anna L et al, “Analysis of Work Requirement Exemptions and Medicaid Spending” (2018) 178(11) JAMA Internal Medicine 1549.

Goldring, Luin & Patricia Landolt, “The Conditionality of Legal Status and Rights: Conceptualizing Precarious Non-citizenship in Canada” in Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013) 3.

Gonzales, Roberto G, Carola Suárez-Orozco & Maria Cecilia Dedios-Sanguineti, “No Place to Belong: Contextualizing Concepts of Mental Health Among Undocumented Immigrant Youth in the United States” (2013) 57:8 American Behavioral Scientist 1174.

Goodwin, Carol, “OHIP policy ‘seals’ people in province, pair complain” Kitchener-Waterloo Record (5 June 1992) B1.

Gordon, Paul, “Medicine, Racism and immigration control” (1983) 3: 7 Critical Soc Policy 6 at 17.

Government of Newfoundland and Labrador, News Release, “International Students to be Covered Under Province’s Medical Care Plan” (5 June 2007).

Grange, Mariette & Izabella Majcher, “When Is Immigration Detention Lawful? The Monitoring Practices of UN Human Rights Mechanisms” (2017) Global Detention Project Working Paper No 21.

Gray, Bradford H & Ewout van Ginneken, Health Care for Undocumented Migrants: European Approaches (New York: The Commonwealth Fund, 2012).

Green, Alan & David Green, “The Economic Goals of Canada’s Immigration Policy: Past and Present” (1999) 25 Can Public Policy 425.

Grewal, Daud, Policy Paper: International Students (Toronto: Ontario Undergraduate Student Alliance, 2010).

Griffiths, Melanie, “Living with Uncertainty: Indefinite Immigration Detention” (2013) J Leg Anthropology 263.

Grit, Kor, Joost J den Otter & Anneke Spreij, “Access to Health Care for Undocumented Migrants: A Comparative Policy Analysis of England and the Netherlands” (2012) 37 J Health Pol 37.

Gross, Dominique, Temporary Foreign Workers in Canada: Are they Really Filling Labour Shortages? (Toronto: C.D. Howe Institute, 2014).

Grove, Natalie & Anthony Zwi, “Our Health and Theirs: Forced Migration, Othering, and Public Health” (2006) 62 Soc Science & Medicine 1931.

Gushulak, Brian et al, “Migration and Health in Canada: Health in the Global Village” (2011) 183:11 CMA J E952.

281

Habib, Samira Humaira & Soma Saha, “Burden of Non-Communicable Disease: Global Overview” (2010) 4:1 Diabetes & Metabolic Syndrome 41.

Hacker, Karen et al, “Barriers to Health Care for Undocumented Immigrants: A Literature Review” (2015) 8 Risk Management & Healthcare Policy 175.

Hadley, Craig et al, “Hunger and Health Among Undocumented Mexican Migrants in a US Urban Area” (2008) 11:2 Public Health Nutrition 151.

Hadley, Jack et al, “Covering the Uninsured in 2008: Current Costs, Sources of Payment, and Incremental Costs” (2008) 27:5 Health Affairs w399.

Hall, Chris, “Bill for Ottawa OHIP Faker: $30,000” Ottawa Citizen (14 March 1990) B1.

Hammond, Laura, “Somali Transnational Activism and Integration in the UK: Mutually Supporting Strategies,” (2013) 39:6 J Ethnic & Migration Studies 1001.

Hanes, Roy, “None is Still Too Many: An Historical Exploration of Canadian Immigration Legislation as It Pertains to People with Disabilities” (2009) 37:1&2 Developmental Disability Bull 91.

Harmes, Adam, “The Rise of Neoliberal Nationalism” (2012) 19 Rev Intl Political Economy 59.

Harrington, John, “Law, Globalisation and the NHS” (2007) 92 Capital & Class 81.

Harvey, David, A Brief History of Neoliberalism (Oxford, U.K.: Oxford University Press, 2005).

———, “Neoliberalism as Creative Destruction” (2007) 610 Annals American Academy Political & Soc Science 22.

Hathout, Ahmad, “Free medical clinics in GTA overwhelmed with refugees” The Globe and Mail (29 December 2012) A16.

Hausman, Daniel M, “A Lockean Argument for Universal Access to Health Care” (2011) 28 Soc Philosophy & Policy 166.

Havinga, Tetty & Anita Böcker, “Country of Asylum by Choice or by Chance: Asylum-seekers in Belgium, the Netherlands and the UK” (1999) 25 J Ethnic & Migration Studies 43

Hayes, Debra, “History and Context: The Impact of Immigration Control on Welfare Delivery” in Debra Hayes & Beth Humphries, eds, Social Work, Immigration and Asylum: Debates, Dilemmas and Ethical Issues for Social Work and Social Care Practice (New York: Jessica Kingsley, 2004) 11.

———, “From Aliens to Asylum Seekers: A History of Immigration Controls and Welfare in Britain” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 30.

282

———, “Outsider Within: The Role of Welfare in the Internal Control of Immigration” in Janet Batsleer & Beth Humphries, eds, Welfare, Exclusion and Political Agency (New York: Routledge, 2000) 63.

Health Canada, Canada Health Act Annual Report 2005-2006 (Ottawa: Health Canada, 2006).

———, Canada Health Act ─ Annual Report 2018-2019 (Ottawa: Health Canada, 2020).

———, Your Health Benefits: A Guide for First Nations to Access Non-Insured Health Benefits (Ottawa: Health Canada, 2012).

Healthcare Insurance for International Students in the Netherlands (The Hague: Netherlands Organisation for International Cooperation in Higher Education, 2014), online: Nuffic .

Hearing, Liesbeth & Rob van der Erf, “Why Do People Migrate?” in Statistics in Focus: Theme 3 ─ Population and Social Conditions (Luxembourg: Eurostat, 2001).

Heckle, Harold, “Protesters Decry Spain’s Move to Deny Many Illegal Immigrants Free Health Care”, The [Montreal] Gazette (1 September 2012), online: .

Helbling, Marc & Dorina Kalkum, “Migration Policy Trends in OECD Countries” (2018) 25:12 J European Public Policy 1779.

Hennebry, Jenna “Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada” (2012) 26 IRPP Study 1.

Hernández, César Cuauhtémoc García, Migrating to Prison: America’s Obsession with Locking Up Immigrants (New York: The New Press, 2019).

Hinton, Kip Austin, “Undocumented Citizens: The Civic Engagement of Activist Immigrants” (2015) 10 Education, Citizenship & Social Justice 152.

Hocking, Debbie C, Gerard Kennedy & Suresh Sundram, “Mental Disorders in Asylum Seekers: The Role of the Refugee Determination Process and Employment” (2015) 203:1 J Nervous & Mental Disease 28.

Hoekman, Bernard, “The WTO: Functions and Basic Principles” in Bernard Hoekman, Aaditya Mattoo & Philip English, eds, Development, Trade, and the WTO (Washington, D.C.: World Bank, 2002) 41.

Holcroft, Christopher, “Restored Care for Refugees Affirms Canadian Values” [Halifax] Chronicle-Herald (2 March 2016) A10.

Hollifield, James, “Immigration and the Politics of Rights: The French Case in Comparative Perspective” in Michael Bommes & Andrew Gedds, eds, Immigration and Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000) 109.

283

Hooghe, Marc, Tim Reeskens & Dietlind Stolle, “Diversity, Multiculturalism and Social Cohesion: Trust and Ethnocentrism” in Keith Banting, Thomas J Courchene & F Leslie Seidle, eds, Belonging? Diversity, Recognition and Shared Citizenship in Canada (Montreal: Institute for Research on Public Policy, 2007) 387.

Hopkins, Laura et al, “Medical Tourism Today: What is the State of Existing Knowledge?” (2010) 31 J Public Health Policy 185.

Houtepen, Rob & Ruud ter Meulen, “New Types of Solidarity in the European Welfare State” (2000) 8 Health Care Analysis 329.

Hoxsey, Dann, “Debating the Ghost of Marshall: A Critique of Citizenship” (2011) 15 Citizenship Studies 915.

Hoye, Bryce, “Manitoba Hopes to Save $3M by Pulling Universal Health Care for International Students” CBC News (14 March 2018), online:

Hsiung, Ping-Chun & Katherine Nichol, “Policies on and Experience of Foreign Domestic Workers in Canada” (2010) 4:9 Sociology Compass 766.

Hunter, David & Angus J Dawson, “Is There a Need for Global Health Ethics? For and Against” in Solomon Benatar & Gillian Brock, eds, Global Health and Global Health Ethics (Cambridge: Cambridge University Press, 2011) 77.

Hursh, David, “Neo-Liberalism, Markets and Accountability: Transforming Education and Undermining Democracy in the United States and England” (2005) 3 Policy Future in Education 3.

Hussen, Ahmed, “Ministerial Instructions Respecting the Express Entry System – Current” (20 June 2018), online: Government of Canada < canada.ca/en/immigration-refugees- citizenship/corporate/mandate/policies-operational-instructions-agreements/ministerial- instructions/express-entry-application-management-system/current.html>.

Hyman, Ilene, “Setting the Stage: Reviewing Current Knowledge on the Health of Canadian Immigrants” (2004) 95:3 Can J Public Health I-4.

Hynie, Michaela, Chris Ardern & Angela Robertson, “Emergency Room Visits by Uninsured Children and Adult Residents in Ontario, Canada: What Diagnoses, Severity and Visit Disposition Reveal About the Impact of Being Uninsured” (2016) 18 J Immigrant & Minority Health 948.

Ikemoto, Lisa, “Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services” (2009) 27 Law & Ineq 277.

Illingworth, Patricia & Wendy Parmet, The Health of Newcomers: Immigration, Health Policy, and the Case for Global Solidarity (New York: New York University Press, 2017).

Information Sheet for Interim Federal Health Program Recipients (Ottawa: Citizenship and Immigration Canada, 2011).

284

Institute of Medicine of the National Academies, A Shared Destiny: Community Effects of Uninsurance (Washington, DC: National Academies Press, 2003).

———, Insuring America’s Health: Principles and Recommendations (Washington, DC: National Academies Press, 2004).

Interim Federal Health Program Policy (19 August 2019), online: Government of Canada .

Interim Federal Health Program: Information Handbook for Health Care Providers (Edmonton: FAS Benefit Administrators, 2005).

Ishay, Micheline R, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2008).

Jacek, Brian & Kristina Hon, “At Least Let Them Work”: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States (N.p.: Human Rights Watch, 2013).

Jackman, Martha, “Constitutional Jurisdiction over Health in Canada” (2000) 8 Health LJ 95.

Jarvis, Catherine et al, “Retrospective Review of Prenatal Care and Perinatal Outcomes in A Group of Uninsured Pregnant Women” (2011) 33 J Obstetrics & Gynaecology Can 235.

Johnson, Kevin R, “An Essay on Immigration Politics, Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance of Race” (1995) 70 Wash L Rev 629.

———, “Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class” (1995) 42 UCLA L Rev 1509.

Johnson, Phil et al, “Legal Origin and Social Solidarity: The Continued Relevance of Durkheim to Comparative Institutional Analysis” (2017) 51 Sociology 646.

Juravle, Carmen et al, Fact Finding Analysis on the Impact on Member States’ Social Security Systems of the Entitlements of Non-active Intra-EU Migrants to Special Non-contributory Cash Benefits and Healthcare Granted on the Basis of Residence (ICF GHK, 2013).

Kalich, Angela, Lyn Heinemann & Setareh Ghahari, “A Scoping Review of Immigrant Experience of Health Care Access Barriers in Canada” (2016) 18 J Immigrant & Minority Health 697.

Kanchanachitra, Churnrurtai et al, “Human Resources for Health in Southeast Asia: Shortages, Distributional Challenges, and International Trade in Health Services” (2011) 377 Lancet 769.

Kasarda, John D & Morris Janowitz, “Community Attachment in Mass Society” (1974) 39 American Sociological Rev 328.

285

Katona, Peter & Judit Katona-Apte, “The Interaction between Nutrition and Infection” (2008) 46:10 Clinical Infectious Diseases 1582.

Kaushal, Neeraj & Probert Kaestner “Welfare Reform and Health of Immigrant Women and Their Children” (2007) 9 J Immigrant Health 61.

Kaushal, Neeraj, “New Immigrants’ Location Choices: Magnets without Welfare” (2005) 23 J Labour Economics 59.

Keil, Roger, “‘Common-Sense’ Neoliberalism: Progressive Conservative Urbanism in Toronto, Canada” (2002) 34 Antipode 578.

Kelley, Nancy & Juliette Stevenson, First Do No Harm: Denying Healthcare to People Whose Asylum Claims Have Failed (London: Refugee Council, 2006).

Kelley, Ninette & Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy, 2d ed (Toronto: University of Toronto Press, 2010).

Kennedy, Brendan, “Caged by Canada”, Toronto Star (18 March 2017) A1.

Kennedy, Steven et al, “The Healthy Immigrant Effect: Patterns and Evidence from Four Countries” (2015) 16 J. Intl. Migration & Integration 317.

Kerr, Sari Pekkala & William Kerr, “Economic Impacts of Immigration: A Survey” (2011) 24 Finnish Economic Papers 1

Keung, Nicholas, “‘I Did Not Choose to Have Cancer’” Toronto Star (9 June 2013) A1.

———, “Migrant Workers Pay the Price for the Food Canadians Eat”, Toronto Star (6 October 2017) A1.

———, “Ottawa Proposes Open Permits for Migrant Workers Who Are Abused”, Toronto Star (11 January 2019), online: .

Kirkman-Liff, Bradford L, “Health Insurance Values and Implementation in the Netherlands and the Federal Republic of Germany” (1991) 265:19 JAMA 2496.

Kissoon, Priya, “From Persecution to Destitution: A Snapshot of Asylum Seekers’ Housing and Settlement Experiences in Canada and the United Kingdom” (2010) 8:1 J Immigrant & Refugee Studies 4.

Klein, Naomi, The Shock Doctrine: The Rise of Disaster Capitalism, 1st ed. (Toronto: Knopf Canada, 2007).

Kotz, David, The Rise and Fall of Neoliberal Capitalism (Cambridge, Mass.: Harvard University Press, 2015).

Kuiper, Heather et al, “The Communicable Disease Impact of Eliminating Publicly Funded Prenatal Care for Undocumented Immigrants” (1999) 3 Maternal & Child Health J 39.

286

Kullgren, Jeffrey T, “Restrictions on Undocumented Immigrants’ Access to Health Services: The Public Health Implications of Welfare Reform” (2003) 93:10 American J Public Health 1630.

Kushnick, Louis, “Racism, the National Health Service, and the Health of Black People” (1988) 18 Intl J Health Services 457.

Kvist.Jon, “Does EU Enlargement Start a Race to the Bottom? Strategic Interaction Among EU Member States in Social Policy” (2004) 14:3 J European Soc Policy 301.

Kymlicka, Will, “Solidarity in Diverse Societies: Beyond Neoliberal Multiculturalism and Welfare Chauvinism” (2015) 17 Comparative Migration Studies 3.

Labonte, Ronald, “Social Inclusion/Exclusion and Health: Dancing the Dialectic” in Dennis Raphael, ed, Social Determinants of Health, 2d ed (Toronto: Canadian Scholars’ Press, 2009) 269.

Lacroix, Caroline et al, “The Delay in Diagnosis of Tuberculosis in the Monteregie Region of Quebec, Canada” (2008) 11 McGill J Medicine 124 at 125.

Lagarde, Mylene & Natasha Palmer, “The Impact of User Fees on Access to Health Services in Low- and Middle-Income Countries” (2011) 4 Cochrane Database Systematic Rev CD009094.

Landolt, Patricia, “Salvadoran Economic Transnationalism: Embedded Strategies for Household Maintenance, Immigrant Incorporation, and Entrepreneurial Expansion,” (2001) 1:3 Global Networks 217.

Legido-Quigley, Helena et al, “Will Austerity Cuts Dismantle the Spanish Healthcare System?” (2013) 346 BMJ 18.

Lett, Dan, “Tories Fixated on Cuts, Not Better Health Care” Winnipeg Free Press (22 July 2017) A15.

Lewicka, Maria, “Place Attachment: How Far Have We Come in the Last 40 Years?” (2011) 31 J Environmental Psychology 207.

Li, Alan et al, Transformation through Collective Action: Best Practices in Migration, HIV and Mental Health (Toronto: Committee for Accessible Treatment, 2008).

Liebenberg, Sandra, “Social Citizenship: A Precondition for Meaningful Democracy” (1999) 40 Agenda 59.

Liew, Jamie Chai Yun & Donald Galloway, Immigration Law, 2nd ed (Toronto: Irwin Law, 2015).

Limbaugh, David, “Let Free Market Fix Health Care”, The Spectrum & Daily News [of St. George, Utah] (10 March 2017) A6.

Link Bruce & Jo Phelan, “Conceptualizing Stigma” (2001) 27:1 Annual Rev Sociology 363.

287

Lu, Michael, “Elimination of Public Funding of Prenatal Care for Undocumented Immigrants in California: A Cost/Benefit Analysis” (2000) 182 American J Obstetrics & Gynecology 233.

Maarse, Hans, “The Privatization of Health Care in Europe: An Eight-Country Analysis” (2006) 31 J Health Politics, Policy & L 981.

MacIntosh, Constance, “Illness, Injury and Medical Deportation at the Frontier: The Canadian Legal Regime for Providing Health Care Protection to Agricultural Migrant Workers” in Catherine Régis, Lara Khoury & Robert P Kouri, Health Law at the Frontier: Les recontres en droit de la santé – Volume 2 (Montreal: Yvon Blais, 2018) 341.

——— , “Medical Inadmissibility, and Physically and Mentally Disabled Would-be Immigrants: Canada’s Story Continues” (2019) 42:1 Dal LJ 125.

MacKay, Douglas,“Immigrant Selection, Health Requirements, and Disability Discrimination” (2018) 14:1 J Ethics & Soc Philosophy 44.

Magalhaes, Lilian, Christine Carrasco & Denise Gastaldo, “Undocumented Migrants in Canada: A Scope Literature Review on Health, Access to Services, and Working Conditions” (2010) 12 J Immigrant & Minority Health 132.

Malchow-Møller, Nikolaj et al, “Attitudes Towards Immigration: Perceived Consequences and Economic Self-interest” (2008) 100 Economic Letters 254.

Mallan, Caroline, “Province Reverses Another OHIP Cut” Toronto Star (23 July 1994) A11.

Marí-Dell’Olmo, Marc et al, “Housing Policies and Health Inequalities” (2017) 47:2 Intl J Health Services 207.

Marlowe, Jay & Sue Elliot, “Global Trends and Refugee Settlement in New Zealand” (2014) 9 Kōtuitui 43.

Marshall, TH, “Citizenship and Social Class” in TH Marshall, ed, Citizenship and Social Class and Other Essays (London: Cambridge University Press, 1950) 1.

Marthaler, Sally, “Nicolas Sarkozy and the Politics of French Immigration Policy” (2008) 15 J European Public Policy 382.

Martin, Danielle & Sandro Galea “Can Compassion Successfully Challenge the Status Quo on Health?”, Maclean’s (9 August 2017), online: .

Martinez, Michael, Emily Zammitti & Robin Cohen, Health Insurance Coverage: Early Release of Estimates from the National Health Interview Survey, January—September 2016 (N.p.: National Centre for Health Statistics, 2017).

Martins, Joaquim Oliveira & Christine de la Maisonneuve, “The Drivers of Public Expenditure on Health and Long-Term Care: An Integrated Approach” (2006) 43:2 OECD Economic Studies 116.

288

Matas, David, “Racism in Canadian Immigration Policy” (1985) 5 Refuge 8.

Maychak, Matt, “Foreigners Exploit Health Cards: MPP” Toronto Star (22 October 1992) A17.

Mbaye, Elhadji, “Contradictions in Public Policies: Immigration and the Struggle against AIDS in France” (2010) 5 Intl J Migration Health & Soc Care 29.

McArdle, Megan, “Medicare for All … Residents of Fantasyland”, The Washington Post (1 August 2018) A15.

McGregor, Sue, “Neoliberalism and Healthcare” (2001) 25 Intl J Consumer Studies 82.

McInnes, Craig, “OHIP Coverage for Foreign Students, Workers Dropped” The Globe and Mail (1 April 1994) A3.

Mckeary, Marie & Bruce Newbold, “Barriers to Care: The Challenges for Canadian Refugees and Their Health Care Providers” (2010) 23:4 J Refugee Studies 523.

McKee, Marin et al, “Universal Health Coverage: A Quest for All Countries But under Threat in Some” (2013) 16 Value in Health S39.

McLaughlin, Janet, Trouble in Our Fields: Health and Human Rights among Mexican and Caribbean MigrantFarm Workers in Canada (Ph.D. Thesis, University of Toronto Graduate Department of Anthropology, 2009) [unpublished].

Menjívar, Cecilia, “Immigration Law Beyond Borders: Externalizing and Internalizing Border Controls in an Era of Securitization” (2014) 10 Annual Rev L & Soc Science 353.

Menzel, Paul & Donald Light, “A Conservative Case for Universal Access to Health Care” (2006) 36 Hastings Center Report 36.

Mewes, Jan & Steffen Mau, “Unraveling Working-Class Welfare Chauvinism” in Stefan Svallfors, ed, Contested Welfare States: Welfare Attitudes in Europe and Beyond (Stanford: Stanford University Press, 2012) 119.

Michalowski, Raymond, “Ethnic Cleansing American Style: SB 1070, Nativism and the Contradiction of Neo-liberal Globalization” (2013) 36 J Crime & Justice 171.

Mickleburgh, Rod, “Rae vows to counteract health-care abuse” The Globe and Mail (19 August 1993) A4.

Miedema, Baukje, Ryan Hamilton & Julie Easley, “Climbing the Walls: Structural Barriers to Accessing Primary Care for Refugee Newcomers in Canada” (2008) 54 Can Family Physician 335.

Migrant Access to Social Security and Healthcare: Policies and Practice (N.p.: European Migration Network, 2014).

Mikkonen, Juha & Dennis Raphael, Social Determinants of Health: The Canadian Facts (Toronto: York University School of Health Policy and Management, 2010).

289

Miller, Adam, “Prison Health Care Inequality” (2013) 185:6 CMAJ E249.

Miller, David, “Cosmopolitanism: A Critique” (2002) 5 Critical Rev Intl Social & Political Philosophy 80.

———, “Distributing Responsibilities” (2001) 9 J. Political Philosophy 453.

———, “In Defence of Nationality” (1993) 10 J Applies Philosophy 3.

———, “In What Sense Must Socialism Be Communitarian?” (1989) 6:2 Social Philosophy & Policy 51.

———, “Solidarity and Its Sources” in Keith Banting & Will Kymlicka, eds, The Strains of Commitment: The Political Sources of Solidarity in Diverse Societies (Oxford: Oxford University Press, 2017) 61.

———, On Nationality (New York: Oxford University Press, 1995).

Moe-Lobeda, Cynthia & Daniel Spencer, “Free Trade Agreements and the Neoliberal Economic Paradigm: Economic, Ecological, and Moral Consequences” (2009) 10 Political Theology 685.

Morgan, Steven G & Katherine Boothe, “Universal Prescription Drug Coverage in Canada: Long-promised Yet Undelivered” (2016) 29:6 Healthcare Management Forum 247.

Moser, Debra K et al, “Reducing Delay in Seeking Treatment by Patients with Acute Coronary Syndrome and Stroke: A Scientific Statement from the American Heart Association, Council on Cardiovascular Nursing and Stroke Council” (2006) 114 Circulation 168.

Mosoff, Judith, “Excessive Demand on the Canadian Conscience: Disability, Family, and Immigration” (1999) 26:2 Man LJ 149.

Mouw, Ted et al, “Binational Social Networks and Assimilation: A Test of the Importance of Transnationalism” (2014) 61:3 Soc Problems 329.

Mudde, Cas, “Three Decades of Populist Radical Right Parties in Western Europe: So What?” (2013) 52 European J Political Research 1.

Muldoon, Laura K, Willian E Hogg & Miriam Levitt, “Primary Care (PC) and Primary Health Care (PHC): What is the Difference?” (2006) 97:5 Can J Public Health 409.

Muntaner, Carles et al, “Challenging the Neoliberal Trend: The Venezuelan Health Care Reform Alternative” (2006) 97:6 Can J Public Health I-19.

Mynott, Ed, “Nationalism, Racism and Immigration Control: From Anti-Racism to Anti- Capitalism” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (London: Routledge, 2002) 11.

Mynott, Ed, Beth Humphries & Steve Cohen, “Introduction: Locating the Debate” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 1.

290

Nakache, Delphine & Paula Kinoshita, “The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail Over Human Rights Concerns?” (2010) 5 IRPP Study 1

Nandi, Arijit, Sana Loue & Sandro Galea, “Expanding the Universe of Universal Coverage: The Population Health Argument for Increasing Coverage for Immigrants” (2009) 11 J Immigrant & Minority Health 433.

Neill, Alexander Vivero, “Human Rights Don’t Stop at the Border: Why Texas Should Provide Preventive Health Care for Undocumented Migrants” (2002) 4 Scholar 405.

Nelson, Erin, “Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy” (2013) 41 JL Med & Ethics 240.

Neumayer, Eric, “Asylum Destination Choice: What Makes Some West European Countries More Attractive Than Others?” (2004) 5:2 EU Politics 155.

New Zealand Qualifications Authority, Code of Practice: For the Pastoral Care of International Students (Crown Copyright, 2010) at 5.

Newbold, Bruce, “The Short-Term Health of Canada’s New Immigrant Arrivals: Evidence from LSIC” (2009) 14:3 Ethnicity & Health 315.

Newton, Manya et al, “Uninsured Adults Presenting to US Emergency Department: Assumptions vs Data” (2008) 300 J American Medical Assoc 1914.

Ng, Edward et al, Dynamics of Immigrants’ Health in Canada: Evidence from the National Population Health Survey (Ottawa: Statistics Canada, 2005).

Nickel, James W, “Should Undocumented Aliens be Entitled to Health Care?” (1986) 16 Hastings Center Report 19.

Nossiter, Adam, “Marine Le Pen Leads Far-Right Fight to Make France ‘More French’”, The New York Times (20 April 2017), online: .

Nussbaum, Martha, “Patriotism and Cosmopolitanism” (1994) 19:5 Boston Rev 3.

NZ, Ministry of Health, Health and Disability Services Eligibility Direction 2011 (Crown Copyright, 2011).

OECD, OECD Employment Outlook 2004, (Paris: OECD, 2004).

Offe, Claus, “Some Contradictions of the Modern Welfare State” (1982) 2:5 Critical So Policy 7.

Okie, Susan, “Immigrants and Health Care: At the Intersection of Two Broken Systems” (2007) 357:6 New England J Med 525.

Öniş, Ziya & Fikret Şenses, “Rethinking the Emerging Post-Washington Consensus” (2005) 36:2 Development & Change 263.

291

Ontario Ministry of Health and Long-Term Care, News Release, “Reinstating access to health care for refugee claimants” (9 December 2013).

Ontario, Legislative Assembly, Official Report of Debates (Hansard), (31 March 1994).

Orgad, Liav, “Creating New Americans: The Essence of Americanism Under the Citizenship Test” (2011) 47 Hous L Rev 1227.

Pace, Paola & Sam Shapiro, Migration and the Right to Health in Europe, ed. by María José Peiro & Roumyana Benedict (Brussels: International Organization for Migration, 2009).

Parekh, Serena, “Beyond the Ethics of Admission: Stateless People, Refugee Camps and Moral Obligation” (2014) 40 Philosophy & Social Criticism 645.

Park, Sean, “Substantial Barriers in Illegal Immigrant Access to Publicly-Funded Health Care: Reasons and Recommendations for Change” (2004) 18 Geo Immigr LJ 567

Parmet, Wendy, “The Trump Administration’s New Public Charge Rule: Implications for Health Care & Public Health” (13 August 2019), Health Affairs (blog), online: .

Parsons, Talcott, “Durkheim’s Contribution to the Theory of Integration of Social Systems” in Kurt H. Wolff, ed, Emile Durkheim, 1858-1917 (Columbus: Ohio State University Press, 1960) 118.

Passel, Jeffrey S, & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010 (Washington, D.C.: Pew Research Center, 2011).

Paterson, Iain & Ken Judge, “Equality of Access to Healthcare” in Johan Mackenbach & Martijntje Bakker, eds, Reducing Inequalities in Health: A European Perspective (London, UK: Routledge, 2002) 169.

Payne, Elizabeth, “Ontario Tightens OHIP Rules” Ottawa Citizen (2 April 1994) A1.

Peck, Jamie & Adam Tickell, “Neoliberalizing Space” in Neil Brenner and Nik Theodore, eds, Spaces of Neoliberalism: Urban Restructuring in North America and Western Europe (Oxford: Blackwell, 2002) 33.

Peedell, Clive, “Global Neoliberalism and the Consequences for Health-Care Policy in the English NHS” in John Lister, ed, Europe’s Health for Sale: The Heavy Cost of Privatisation (London: Libri, 2011) 107.

Petersen, Michael Bang et al, “Deservingness Versus Values in Public Opinion on Welfare: The Automaticity of the Deservingness Heuristic” (2010) 50 European J Political Research 24.

Pfeffer, Naomi, “Eggs-ploiting Women: A Critical Feminist Analysis of the Different Principles in Transplant and Fertility Tourism” (2011) 23 Reproductive BioMedicine Online 634.

292

Phillimore, Jenny & Lisa Goodson, “Problem of Opportunity? Asylum Seekers, Refugees, Employment and Social Exclusion in Deprived Urban Areas” (2006) 43 Urban Studies 1715.

Pichler, Florian, “Cosmopolitanism in a Global Perspective: An International Comparison of Open-minded Orientations and Identity in Relation to Globalization” (2011) 27 Intl Sociology 21.

Popay, Jennie et al, Understanding and Tackling Social Exclusion: Final Report to the WHO Commission on Social Determinants of Health from the Social Exclusion Knowledge Network (WHO Social Exclusion Knowledge Network, 2008).

Population Growth Division, New Brunswick Temporary Foreign Workers: Employer Guide (Fredericton: Province of New Brunswick, 2011).

Pottie, Kevin et al, “Evidence-Based Clinical Guidelines for Immigrants and Refugees” (2011) 183 CMAJ E824.

Prah Ruger, Jennifer, “The Moral Foundation of Health Insurance” (2007) 100 QJ Medicine 53.

———, “Toward a Theory of a Right to Health: capability and Incompletely Theorized Agreements” (2006) 18 Yale JL & Human 273.

Pratt, Anna & Mariana Valverde, “From Deserving Victims to ‘Masters of Confusion’: Redefining Refugees in the 1990s” (2002) 27 Can J Sociology 135.

Preibisch, Kerry & Gerardo Otero, “Does Citizenship Status Matter in Canadian Agriculture? Workplace Health and Safety for Migrant and Immigrant Laborers” (2014) 79 Rural Sociology 174.

Preibisch, Kerry & Jenna Hennebry, “Temporary Migration, Chronic Effects: The Health of International Migrant Workers in Canada” (2011) 183 CMAJ 1033.

Priebe, Stefan et al, “Good Practice in Health Care for Migrants: Views and Experiences of Care Professionals in 16 European Countries” (2011) 11 BMC Public Health 187 .

Priest, Lisa, “Photo OHIP Cards Meant to Combat Fraud” Ottawa Citizen (4 May 1994) A3.

———, “Who Pays Refugee Health Costs?” Toronto Star (15 July 1993) A23.

Quadagno, Jill, “Theories of the Welfare State” (1987) 13 Annual Rev Sociology 109.

Quantitative Assessment of Visitor and Migrant Use of the NHS in England: Exploring the Data (London: Prederi, 2013).

Raphael, Dennis, “Social Structure, Living Conditions, and Health” in Dennis Raphael, ed, Social Determinants of Health, 2nd ed (Toronto: Canadian Scholars’ Press, 2009) 20.

Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).

293

———, “The Idea of An Overlapping Consensus” (1987) 7 Oxford J Leg Stud 1.

Razin, Assaf & Jackline Wahba, “Welfare Magnet Hypothesis, Fiscal Burden, and Immigration Skill Selectivity” (2015) 117:2 Scandinavian J Economic 369.

Régie de l’assurance maladie du Québec, Infolettre 005, “Services médicaux rendus aux demandeurs d’asile admissible au PFSI et resident au Québec” (9 April 2013).

Reichel, David, “Do Legal Regulations Hinder Naturalisation? Citizenship Policies and Naturalisation Rates in Europe” (2011) European University Institute Working Paper No RSCAS 2011/51.

Reidpath, Daniel, “‘He Hath the French Pox’: Stigma, Social Value and Social Exclusion” (2005) 27(4) Sociology Health & Illness 468 at 472.

Reis, Andreas, “Universal Health Coverage: The Critical Importance of Global Solidarity and Good Governance” (2016) 5:9 Intl J Health Policy & Management 557.

Reitmanova, Sylvia & Diana Gustafson, “Rethinking Immigrant Tuberculosis Control in Canada: From Medical Surveillance to Tackling Social Determinants of Health” (2012) 14 J Immigrant & Minority Health 6.

Reynolds, Johanna & Jennifer Hyndman, “A Turn in Canadian Refugee Policy and Practice” (2015) 16:2 Seton Hall J Diplomacy & Intl Relations 41.

Rice, Thomas et al, “Universal Coverage Reforms in the USA: From Obamacare Through Trump” (2018) 122:7 Health Policy 698.

Risse, Mathias, “What We Owe to the Global Poor” (2005) 9:1/2 J Ethics 81.

Roberts, David & Minelle Mahtani, “Neoliberalizing Race, Racing Neoliberalism: Placing ‘Race’ in Neoliberal Discourses” (2010) 42 Antipode 248.

Robison, Vaughan & Jeremy Segrott, Understanding the Decision-making of Asylum Seekers (London, UK: Home Office Research, Development and Statistics Directorate, 2002).

Robjant, Katy, Rita Hassan & Cornelius Katona, “Mental Health Implications of Detaining Asylum Seekers: Systematic Review” (2009) 194 British J Psychiatry 306.

Rodney, Anna M & Peter S. Hill, “Achieving Equity Within Universal Health Coverage: A Narrative Review of Progress and Resources for Measuring Success” (2014) 13 Intl J for Equity in Health 72 .

Rodriguez, Robyn, Migrant for Export: Philippine State Brokers Labor to the World (Minneapolis: University of Minnesota Press, 2010).

Roetzheim, Richard G et al, “Effects of Health Insurance and Race on Early Detection of Cancer” (1999) 91 J National Cancer Institute 1409.

294

Rolnik, Raquel, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Intl J Urban & Regional Research 1058.

Root, Jesse et al, “Discounting Immigrant Families: Neoliberalism and the Framing of Canadian Immigration Policy Change” (2014) Ryerson Centre for Immigration & Settlement Working Paper No 2014/7.

Rosenthal, Lisa et al, “The Importance of Full-Time Work for Urban Adults’ Mental and Physical Health” (2012) 75:9 Soc Science & Medicine 1692.

Rousseau, Cécile et al, “Health Care Access for Refugees and Immigrants with Precarious Status” (2008) 99:4 Can J Public Health 290.

Rousseau, Cécile et al, “Uninsured Immigrant and Refugee Children Presenting to Canadian Paediatric Emergency Departments: Disparities in Help-Seeking and Service Delivery” (2013) 18:9 Paediatrics & Child Health 465.

Rowden, Rick, The Deadly Ideas of Neoliberalism (London: Zed Books, 2009).

Roy, Ravi & Arthur Denzau, “The Neoliberal Shift in US Fiscal Policy From the 1980s to the 1990s” in Ravi Roy, Arthur Denzau & Thomas Willett, eds, Neoliberalism, National and Regional Experiments with Global Ideas (New York: Routledge, 2007).

Rudin, Jeff & David Sanders, “Debt, Structural Adjustment and Health” in Solomon Benatar & Gillian Brock, eds, Global Health and Global Ethics (Cambridge: Cambridge University Press, 2011) 155.

Ryner, Magnus, “European Welfare State Transformation and Migration” in Michael Bommes & Andrew Geddes, eds, Immigration and Welfare: Challenging the Borders of the Welfare State (New York: Routledge, 2000) 51.

Sainsbury, Diane, “Immigrants’ Social Rights in Comparative Perspective: Welfare Regimes, Forms of Immigration and Immigration Policy Regimes” (2006) 16 J European Soc Policy 229.

Sales, Rosemary, “Giving More than They Receive? Migrant Women and Welfare in Britain” (2007) 3:3 Intl J Migration, Health & Social Care 6.

Saltman, Richard B, “Health Sector Solidarity: A Core European Value but With Broadly Varying Content” (2015) 4 Israel J Health Policy Research 5

Sanders, Carol, “New Super Visa is ‘Super Disappointing’”, Winnipeg Free Press (21 December 2011) A4.

———, “Skills Fast-Track Begins Next Year”, Winnipeg Free Press (5 December 2014) B7.

Sargeant, Malcolm & Eric Tucker, “Layers of Vulnerability in Occupational Safety and Health for Migrant Workers: Case Studies from Canada and the U.K.” (2009) 7 Policy & Practice in Health & Safety 51.

295

Satterthwaite, Margaret L, “Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrant Workers” (2005) 8 Yale Human Rts & Dev LJ 1.

Scanlon, TM, “Justification and Legitimation: Comments on Sebastiano Maffettone’s Rawls: An Introduction (2012) 38 Philosophy& Soc Criticism 887.

Scheepers, Peer, Mérove Gijsberts & Marcel Coenders, “Ethnic Exclusionism in European Countries: Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat” (2001) 18 European Sociological Rev 17.

Schuck, Peter, “The Message of Proposition 187” (1995) 26 Pac. L.J. 989.

Sciortino, Giuseppe, “‘A Single Societal Community with Full Citizenship for All’: Talcott Parsons, Citizenship and Modern Society” 10:3 J Classical Sociology 239.

Semyonov, Moshe, Rebeca Raijman & Anastasia Gorodzeisky, “The Rise of Anti-foreigner Sentiment in European Societies, 1988-2000” (2006) 71 American Sociological Rev 426.

Sen, Amartya, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009).

Services Available to Victims of Human Trafficking: A Resource Guide for Social Service Providers (Washington, D.C.: Department of Health and Human Services, 2012).

Shachar, Ayelet, “Citizenship for Sale?” in Ayelet Shachar et al, eds, The Oxford Handbook of Citizenship (New York: Oxford University Press, 2017) 789.

Sheikh-Hamad, David et al, “Care for Immigrants with End-stage Renal Disease in Houston: A Comparison of Two Practices” (2007) 103:4 Texas Medicine 53.

Shimazono, Yosuke, “The State of the International Organ Trade: A Provisional Picture Based on Integration of Available Information” (2007) 85 Bull World Health Organization 955.

Siddique, Haroon, “NHS to Charge Non-EU Patients 150% of the Cost of Treatment” The Guardian (15 July 2014) 11.

Sikka, Anette, Katherine Lippel & Jill Hanley, “Access to Health Care and Workers’ Compensation for Precarious Migrants in Quebec, Ontario and New Brunswick” (2011) 5 McGill JL & Health 203.

Silver, Hilary, “Social Exclusion and Social Solidarity: Three Paradigms” (1994) 133 Intl Labour Rev 531.

Siskin, Alison, Treatment of Noncitizens Under the Patient Protection and Affordable Care Act (Washington, D.C.: Congressional Research Service, 2011).

Smith, Matthew R, “Reaction to Health Care Challenges for Non-Citizen Immigrants in the U.S.” (2011) 3 Georgetown JL & Modern Critical Race Perspectives 169.

Soehl, Thomas & Roger Waldinger, “Making the Connection: Latino Immigrants and Their Cross-Border Ties,” (2010) 33:9 Ethnic & Racial Studies 1489.

296

Solar, Orielle & Alec Irwin, A Conceptual Framework for Action on the Social Determinants of Health: Discussion Paper for the Commission on Social Determinants of Health (Geneva: World Health Organization, 2007), online: WHO at 8.

Sondhi, Ranjit, “Immigration and Citizenship in Postwar Britain” in C. Fried, ed, Minorities: Community and Identity (Berlin: Springer-Verlag, 1983) 255.

Song, Sarah, “The Significance of Territorial Presence and the Rights of Immigrants” in Sarah Fine & Lea Ypi, eds, Migration in Political Theory: The Ethics of Movement and Membership (Oxford: Oxford University Press, 2016) 225.

Soysal, Yasemin Nuhoglu, “Citizenship, Immigration, and the European Social Project: Rights and Obligations of Individuality” (2012) 63 British J Sociology 1.

Special Committee on International Graduate and Professional Students, Report: Addressing the Cost of UHIP (University Health Insurance Plan) for International Graduate & Professional Students (Kingston: Queen’s University Society of Graduate and Professional Students, 2007).

Spinks, Harriet, “Abolition of the 45 Day Rule” (last visited 13 February 2020), online: Parliament of Australia .

Starfield, Barbara, “Is Primary Care Essential?” (1994) 344 Lancet 1129.

Starfield, Barbara, Leiyu Shi & James Macinko, “Contribution of Primary Care to Health Systems and Health” (2005) 83:3 Milbank Q 457.

Stasiulis, Daiva & Abigail Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto Press, 2005).

Stevens, Dallal, “Asylum Seekers and the Right to Access Health Care” (2010) 61 N. Ir. Legal Q. 363.

Stiglitz, Joseph, Globalisation and Its Discontents (New York: W.W. Norton & Company, 2002).

Storrow, Richard F, “Assisted Reproduction on Treacherous Terrain: The Legal Hazard of Cross-Border Reproductive Travel (2011) 23 Reproductive BioMedicine Online538.

Sutherland, Jason M et al, Paying for Hospital Services: A Hard Look at the Options (Toronto: C.D. Howe Institute, 2013).

Swardson, Anne, “Canada’s Vaunted Health Care System Limiting Coverage, Reducing Services”, The Washington Post (19 April 1994) A12.

Taket, Ann et al, eds, Theorising Social Exclusion (New York: Routledge, 2009).

297

Taylor-Gooby, Peter, Reframing Social Citizenship (New York: Oxford University Press, 2009). ter Meulen, Ruud, “Solidarity and Justice in Health Care. A Critical Analysis of Their Relationship” (2015) 43 Diametros 1.

Terris, Milton, “The Neoliberal Triad of Anti-Health Reforms: Government Budget Cutting, Deregulation, and Privatization” (1999) 20:2 J Public Health Policy 149.

Thomas Pogge, “Severe Poverty as a Violation of Negative Duties” (20015) 19 Ethics & Intl Affairs 55.

Thomas Pogge, “World Poverty and Human Rights” (2005) 19 Ethics & Intl Affairs 1.

Thurnbull, Sarah, “‘Stuck in the Middle’: Waiting and Uncertainty in Immigration Detention” (2016) 25:1 Time & Society 61.

Ticktin, Miriam, “Transnational Humanitarianism” (2014) 43 Annual Rev Anthropology 273.

Ticktin, Miriam, “Where Ethics and Politics Meet: The Violence of Humanitarianism in France” (2006) 33 American Ethnologist 33.

Timmins, Nicholas, “Health Tourism Curbs: Patients May Have to Show Proof of Identity” Financial Times (30 July 2003) 4.

Tomás, Bruno Abarca et al, “Tuberculosis in Migrant Populations: A Systemic Review of Qualitative Literature” (2013) 8:12 PLoS ONE e82440.

Traynor, Ian, “Refugee crisis: Schengen scheme on the brink after Amsterdam talks” The Guardian (25 January 2016) 2.

Tseng, Joshua, Harry C Sax & Rodrigo F Alban, “Variability in Critical Care-Related Charge Markups in Medicare Patients” (2018) 84 American Surgeon 1622.

Turenne, Paul, “Foreign students in Manitoba to get free health care” Winnipeg Sun (25 October 2011), online: .

Turner, Rachel, Neo-Liberal Ideology: History, Concepts and Policies (Edinburg, U.K.: Edinburgh University Press, 2008).

U.K., Department of Health, HIV Treatment for Overseas Visitors: Guidance for the NHS (Crown Copyright, 2012).

———, Visitor & Migrant NHS Cost Recovery Programme: Implementation Plan 2014-2016 (Crown Copyright, 2014).

U.K., Home Office, Enforcing the Rules: A Strategy to Ensure and Enforce Compliance with Our Immigration Laws (London: Central Office of Information, 2007).

298

UK, Guidance on Implementing the Overseas Visitor Charging Regulations (Leeds: Department of Health & Social Care, 2018).

UK, HC, Parliamentary History of England, vol 213, col 61 (2 November 1992) (Edward Garnier).

———, vol 267, col 338 (20 November 1995).

UN Department of Economic and Social Affairs, Population Division, International Migration Report 2017: Highlights (New York: United Nations, 2017) at 4.

UN High Commissioner for Refugees, Briefing Notes, “UNHCR: 6 steps towards solving the refugee situation in Europe” (4 March 2016), online: UNHCR .

———, UNHCR Resettlement Handbook (Geneva: UNHCR, 2011).

US, Foreign Affairs Manual.

Valdman, Mikhail, “A Theory of Wrongful Exploitation” (2009) 9 Philosophers’ Imprint 6 .

Valiani, Salimah, “The Shifting Landscape of Contemporary Canadian Immigration Policy: The Rise of Temporary Migration and Employer-Driven Immigration” in Goldring & Landolt, eds, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013) 55. van Ginneken, Ewout & Thomas Rice, “Enforcing Enrollment in Health Insurance Exchanges: Evidence from the Netherlands, Switzerland, and Germany” (2015) 72:4 Medical Care Research & Rev 496. van Kooy, John & Dina Bowman, “‘Surrounded with So Much Uncertainty’: Asylum Seekers and Manufactured Precarity” (2019) 45:5 J Ethnic & Migration Studies 693. van Oorschot, Wim, “Who Should Get What, and Why? On Deservingness Criteria and the Conditionality of Solidarity Among the Public” (2000) 28 Policy & Politics 33. van Wageningen, Ellen, “Fighting fraud: The Ontario Health Ministry is seeking ways to police health-card abuse” The Windsor Star (21 August 1993) E1.

Vanthuyne, Karine et al, “Health Workers’ Perceptions of Access to Care for Children and Pregnant Women with Precarious Immigration Status: Health as a Right or a Privilege?” (2013) 93 Soc Science & Medicine 78.

Varsanyi, Monica, “Neoliberalism and Nativism: Local Anti-Immigrant Policy Activism and an Emerging Politics of Scale” (2010) 35 Intl J Urban & Regional Research 295.

Venkat, PR, Sam Holmes & Alison Tudor, “An Uncommon Deal Battle Ends” The Wall Street Journal (27 July 2010), online: .

299 von Werthern, M et al, “The Impact of Immigration Detention on Mental Health: A Systematic Review” (2018) 18 BMC Psychiatry 382.

Walker, Anne F, “The Legal Duty of Physicians and Hospitals to Provide Emergency Care” (2002) 166:4 CMAJ 465.

Walker, Anne, “The Legal Duty of Physicians and Hospitals to Provide Emergency Care” (2002) 166 CMAJ 465.

Walsh, James P, “Quantifying Citizens: Neoliberal Restructuring and Immigrant Selection in Canada and Australia” (2011) 15 Citizenship Studies 861.

Walsh, Mary Williams, “A Lamp to the Nations Flickers” Los Angeles Times (18 June 1992) 1.

Warmington, Rebecca & Dolly Lin, “Healthcare Is Political: Case Example of Physician Advocacy in Response to the Cuts to Refugees’ and Claimants’ Healthcare Coverage under the Interim Federal Health Program” (2014) 4 University Ottawa J Medicine 45.

Watkins, David A et al, “Universal Health Coverage and Essential Packages of Care” in Dean T Jamison et al, eds, Disease Control Priorities, 3rd ed, vol 9 (Washington, DC: World Bank, 2017) 43.

Watters, Charles, “Towards A New Paradigm in Migrant Health Research: Integrating Entitlement, Access and Appropriateness” (2011) 7 Intl J Migration Health & Soc Care 148.

Weiss, Remi, “France: Recent Immigration-Related Developments Affecting Persons Suffering from Serious Illnesses” (2011) 15:3 Can HIV/AIDS Pol’y & L Rev 38.

Weissman, Joel S et al, “Delays Access to Health Care: Risk Factors, Reasons, and Consequences” (1991) 114 Annals Internal Medicine 325.

Welch, Michael & Liza Schuster, “Detention of Asylum Seekers in the US, UK, France, Germany, and Italy: A Critical View of the Globalizing Culture of Control” (2005) 5:4 Criminal Justice 331.

Whiteside, Heather, “Canada’s Health Care ‘Crisis’: Accumulation by Dispossession and the Neoliberal Fix” (2009) 84 Studies in Political Economy 79.

Willen, Sarah, “Migration, ‘Illegality,’ and Health: Mapping Embodied Vulnerability and Debating Health-Related Deservingness” (2012) 74 Soc Science & Medicine 805.

Williamson, John, “A Short History of the Washington Consensus” (2009) 15 L & Bus Rev Americas 7.

———, “Lowest Common Denominator or Neoliberal Manifesto? The Polemics of the Washington Consensus” in Richard Auty & John Toye, eds, Challenging the Orthodoxies (London: MacMillan, 1996) 13.

300

Winter, Elke, “(Im)possible Citizens: Canada’s ‘Citizenship Bonanza’ and Its Boundaries” (2014) 18 Citizenship Studies 46.

Woods, Ngaire, The Globalizers: The IMF, the World Bank, and Their Borrowers (Ithaca: Cornell University Press, 2006).

World Bank, World Development Report 1993: Investing in Health (New York: Oxford University Press, 1993).

———, World Development Report 2004: Making Services Work for Poor People (Washington, D.C.: World Bank & Oxford University Press, 2004).

World Health Organization, The Economics of Social Determinants of Health and Health Inequalities: A Resource Book (Luxembourg: World Health Organization, 2013).

World Trade Organization, Annual Report 2017 (Geneva: World Trade Organization, 2017).

Wrenn, Mary, “Identity, Identity Politics, and Neoliberalism” (2014) 4 Panoeconomicus 503.

Xu, Tim et al, “Variation in Emergency Department vs Internal Medicine Excess Charges in the United States” (2017) 177 JAMA Internal Medicine 1139.

Yamin, Alicia Ely, “Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We should Care” (2008) 10:1 Health & Hum Rts 45.

Yanar, Basak, Agnieszka Kosny & Peter M Smith, “Occupational Health and Safety Vulnerability of Recent Immigrants and Refugees” (2018) 15:9 Intl J Environmental Research & Public Health 2004 .

Zabdyr-Jamróz, Michał, “The Veil of Ignorance and Solidarity in Healthcare: Finding Compassion in the Original Position” (2015) 43 Diametros 79.

Zamosky, Lisa, “Healthcare Options for Undocumented Immigrants” Los Angeles Times (27 April 2014), online: .

Zavodny, Madeline, “Determinants of Recent Immigrants’ Locational Choices” (1999) 33 Intl Migration Rev 1014.

Zimmermann, Klaus F. et al, Study on Active Inclusion of Migrants (Institute for the Study of Labor & The Economic and Social Research Institute, 2012).

Zimmermann, Wendy & Michael Fix, “Immigration and Welfare Reforms in the United States Through the Lens of Mixed-Status Families” in Steve Cohen, Beth Humphries & Ed Mynott, eds, From Immigration Controls to Welfare Controls (New York: Routledge, 2002) 59.

Zuber, Julianne, “Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S.” (2012) 28 J Contemp Health L & Pol’y 350.