Immigration applicants with disabilities must be assessed individually, court rules.

Ottawa -- "It seems somewhat incongruous to interpret the legislation in such a way that the very assets that qualify these individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children," Justice Rosalie Abella wrote in a ruling by the Supreme Court. The court ruled, nine to two, the Minister of Immigration must reconsider the application of two families that had been refused admission to Canada under the entrepreneur or self employed class, each having a child with an intellectual disability.

The interveners, the Canadian Association for Community Living and Ethno-Racial People with Disabilities Coalition appeared before the court, arguing that rulings of the immigrations officers in these cases:

* are based on a medical model of disability that is rooted in prejudices and stereotypes about persons with disabilities that reinforce their historical marginalization and exclusion;

* are premised on unfair and artificial comparisons;

* impose additional burdens on persons with disabilities and their families that are not imposed on families with nondisabled dependents who are seeking to immigrate to Canada;

* fail to take into account non-medical factors, including the positive contributions and individual characteristics of persons with disabilities, and the family and community supports available to them; and

* fail to adhere to a social model of disability and accommodate the individual circumstances of persons with disabilities.

The ruling written by Justice Rosalie Abella stated, "a review of the more recent legislative history indicates a legislative intention to shift from an approach based on categorical exclusion, such as intellectual disability, to one calling for individualized assessments. The fears articulated in the rejections of the applications, such as possible bankruptcy, mobility, school closure or parental death, represent contingencies that could be raised in relation to any applicant."

One judge ruled the immigration officer's decision not to admit was not in keeping with the Immigration Act. In the second case another judge ruled that the family's resources did not matter and that intellectual disability was enough to bar entry. The two dissenting Supreme Court Justices argued that the wealth of an applicant is not a factor to be considered under the Act.

The Supreme Court ordered that the applications be referred to the Minister of Citizenship and Immigration for reconsideration and redetermination by different visa officers.