Down syndrome child denied permanent residency borders on discrimination, expert says

[Nico Montoya, a 13-year-old boy with Down syndrome, looks outside of his window at his home in Richmond Hill, Ont., on March 19, 2016. THE CANADIAN PRESS/Mark Blinch]

The federal government’s decision to deny permanent residency to the family of a York University professor because his son has Down syndrome is legal, but an immigration expert says it borders on discrimination.

“It offends the basic principles of equality and non discrimination,” Sharry Aiken, a law professor at Queen’s University, told Yahoo Canada News.

Felipe Montoya was told his son’s condition could put a burden on the health care system, even though Nicolas was found to be perfectly healthy otherwise.

Potential costs to the health care system are one of the most common reasons people are denied permanent residency or immigration to Canada.

“It’s really unfortunate. I disagree with it and I think it’s a matter that’s rife for challenge again,” Aiken said.

Aiken, who specializes in immigration law and policy, referenced a similar situation brought to the Supreme Court of Canada in 2005, where two families were denied immigration to Canada because of a child with intellectual disabilities.

At the time, the top court ruled the ability of the families to pay for additional supports should have been taken into consideration when the applications were processed. However, the Supreme Court did not overturn the decision.

Aiken points out that circumstances are different than in 2005, particularly because disabilities are now treated as an equal rights issue.

“Children with Down syndrome are fully integrated into the educational system with supports that are available as a right to Canadian citizens and residents,” she said.

This case should be revisited, Aiken said, especially because this is a family that’s integrated into Canada.

“The parents are already contributing. They’re gainfully employed and paying taxes. Yes, one of their children will need added supports, but they’re getting them through a publicly available system and the parents are contributing to that system through the payment of their tax dollars,” she said.

Montoya’s son has been attending a pre-existing classroom at a local school.

“There were no extra provisions for him. He joined a classroom just like my daughter did,” Montoya told The Canadian Press. “My daughter is not deemed inadmissible because of her use of state services, yet Nico is.”

The Canadian Down Syndrome Society said situations like the Montoyas are commonplace.

“The rejection letters always say they’ll cause excessive demand on health or social service,” said Kaitlyn Pecson, communications manager for the society. “It’s such a generalization.”

Pecson said that a person with Down syndrome will need supports, but they don’t necessarily have additional health complications.

“It’s not a disease. It’s not anything that needs to be cured. It’s a chromosomal arrangement,” Pecson said. “There can be a perfectly healthy person with Down syndrome, or they can have a lot of health complications just like to the general population.”

The society hasn’t been contacted by the Montoya family, but has posted a letter of support on its website.

On Monday, society representatives were in Ottawa to meet with MPs and ministers about changing how Down syndrome is viewed by immigration officials, Pecson said.

The society would like to see immigration cases involving Down syndrome evaluated on a case-by-case basis.