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Apr 6, 2018

MEDICAL INADMISSIBILITY: A MOVEMENT TOWARDS INCLUSIVITY

Alexandra Cole

THE LEGISLATION

The subject of Canada’s medical inadmissibility provisions has been a hot topic on the government’s radar in recent years. In particular, the focus has been on section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA), which provides:

Health grounds

  • 38 (1) A foreign national is inadmissible on health grounds if their health condition

[…]

(c) might reasonably be expected to cause excessive demand on health or social services.

The effect of this provision is to exclude foreign nationals from entering or remaining in Canada, if Immigration Refugees and Citizenship Canada (IRCC) makes a determination that their health condition is one which may cause an excessive demand on Canada’s health or social services. 

A LOOK BACK

Predating Canadian Confederation in 1867, provincial and colonial legislation such as the 1848 Immigration Act of Upper Canada (Ontario) and Lower Canada (Quebec), tasked the Canadian port authorities with the responsibility of identifying and reporting individuals who were determined likely to become permanently reliant on the public system due to a health condition. Depending on the circumstance, these individuals would either be admitted to Canada, quarantined, or denied entry and returned to their country of origin. Canada’s first federal Immigration legislation, An Act Respecting Immigration and Immigrants, which was enacted in 1869, included similar restrictions on entry of newcomers to Canada based upon health conditions.

Over the years the “medical inadmissibility” provision(s) have been amended numerous times, including updates to the language and the addition of limited exceptions, however the fundamental effect of excluding foreign nationals from Canada as a result of a health condition(s) has remained unchanged. Now, it appears that we can anticipate upcoming change to section 38(1)(c) of the IRPA that will be more impactful than those of the past.

WHAT IS HAPPENING NOW?

In the fall of 2017, the House of Commons Standing Committee on Citizenship and Immigration undertook a review of federal policies and guidelines regarding medical inadmissibility, releasing a comprehensive report in December 2017 (link can be found here). The foremost recommendation of the Standing Committee is the complete repeal of section 38(1)(c) of the IRPA, including a repeal of all corresponding regulations found in the Immigration and Refugee Protection Regulations (IRPR), policies, and guidelines.

In collaboration with the provinces and territories, Canada’s Minister of Immigration, Refugees and Citizenship has also undertaken a review of the medical inadmissibility provision, recognizing that the current policy requires reform to bring it in step with Canadian values. 

As a social push for inclusivity has gained momentum, organizations and advocates for change have been vocal in their resounding message that the provision is antiquated, discriminatory, and overall out of touch with modern values, including contemporary human rights protections.

UNDERSTANDING EXCESSIVE DEMAND

Section 1 of the Immigration and Refugee Protection Regulations (IRPR) defines “excessive demand” as:

  • a demand on health or social services for which the anticipated costs would likely exceed average Canadian per capital health/social services costs over a period of five consecutive years; or
  • a demand on health/social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents.

Currently, the average Canadian per capita cost threshold is $6,655 per year. If the services that a health condition may reasonably require exceed this cost threshold, this could be considered excessive demand, resulting in a finding of inadmissibility to Canada.

Under the IRPR, health and social services are, in short, defined as services where the majority of funding is contributed by the government. In Ontario for example, any service that is covered under the Ontario Health Insurance Plan (OHIP) would be considered in the assessment of excessive demand.

CURRENT IMPLICATIONS OF THE PROVISION FOR FOREIGN NATIONALS

When making an application to IRCC to enter or remain in Canada as a temporary resident (i.e. worker) or permanently, IRCC routinely requests foreign nationals to undergo a comprehensive medical examination. This requirement can be country specific or application specific. In the case of an application for permanent residence in Canada, a medical examination is mandatory for all applicants.

In this process, if it is discovered that the primary applicant, or an accompanying dependent family member such as a spouse or child, has a medical condition, which may cause an excessive demand, the applicant can be refused under IRPA section 38(1)(c). For instance, the health and/or social services which may be required for conditions such as cancer, multiple sclerosis, diabetes, hepatitis, and/or HIV/AIDS can be caught by this provision. For school-aged children accompanying their parent(s) in Canada, those requiring special education services for diagnoses involving autism or autism spectrum disorder, deafness, legal blindness, or intellectual ability, are also potential scenarios that could be caught under the provision.

Many temporary residents in Canada may not know that there is an issue with their health until they undergo a medical examination for the purposes of applying for permanent residence. As such, the situation could arise where a foreign national has been working in Canada for several years only to discover upon making an application to IRCC for permanent residence, that they have a medical condition which could render them inadmissible to Canada.

IS THERE A SOLUTION?

Applicant(s) will be given an opportunity to respond to IRCC’s concerns regarding medical inadmissibility prior to a final determination being made on the underlying application. The applicant will receive a “procedural fairness” letter from IRCC noting the concern(s) along with a detailed summary of the health and/or social services IRCC believes the applicant will require due to their health condition, including the estimated cost. The applicant must provide a response within an allotted period of time (generally 60 days). 

It is possible for an applicant to overcome a preliminary finding of medical inadmissibility where the applicant can provide a detailed and feasible plan to attenuate the expected use and cost of the health and/or social services. An assessment of feasibility will take into account, among other things, the particular circumstances of the applicant’s health condition, including treatment required and expected progression of the condition. The financial and personal resources available, along with supporting documentation, are also considered.

It may seem like a no brainer, for those with the resources available, to pay for services privately, opting out of publicly funded services. However, many publicly funded services, like OHIP, do not have an “opt-out” or cost recovery mechanism, eliminating the ability of a foreign national to put forward this solution.

In the case of prescription medication, which may be publicly funded under programs such as the Ontario Drug Benefit (ODB) program, demonstrating ineligibility for public funding, availability of sufficient financial resources and/or coverage of medication costs under an employee health benefits plan can be sufficient to assuage the concerns of IRCC. However, other factors such as the degenerative nature of a health condition, poor prognosis for disease progression, or expected reliance on palliative care, can complicate matters and raise concerns related to waiting lists and increased mortality.

In Hilewitz v. Canada (Minister of Citizenship and Immigration) 2005 SCC 57, [2005] 2 SCR 706, the Supreme Court of Canada has provided guidance in this regard, holding that an assessment must be carried out on an individualized basis:

If the medical officer considers the need for potential services based only on the classification of the impairment rather than on its particular manifestation, the assessment becomes generic rather than individual. It is an approach which attaches a cost assessment to the disability rather than to the individual. This in turn results in an automatic exclusion for all individuals with a particular disability, even those whose admission would not cause, or would not reasonably be expected to cause, excessive demands on public funds.

The Court made it clear that medical inadmissibility decisions require individualized assessments of the particular circumstances presented by applicants, not simply a non-specific assessment of the health condition in general.

An applicant can also request special discretionary relief based upon humanitarian and compassionate grounds, under section 25(1) of the IRPA. If sufficient humanitarian and compassionate grounds exist, IRCC can approve the application despite having determined that the applicant is medically inadmissible.

A LOOK FORWARD

At present, there are limited exceptions to the medical inadmissibility provision. For instance, a foreign national who is applying for permanent residence in Canada as a sponsored spouse of a Canadian or Permanent Resident of Canada, cannot be found medically inadmissible under IRPA section 38(1)(c). Reflected in this exception is the objective of immigration to see that families are reunited in Canada under section 3(1) of the IRPA.

Along the same vein, the Standing Committee’s report recommended that IRCC expand the list of exempted persons from the excessive demand provision to include economic applicants that are already working in Canada and their family members. Here, we see a recognition of the particular degree of hardship that can result due to a finding of medical inadmissibility in these circumstances. For an individual who is already working and established in Canada, contributing to their community and to the economy, while at the same time putting down roots and building a future for themselves, an unexpected finding of medical inadmissibility can have devastating consequences on their life and the life of their dependent family member(s).

Following the release of the Standing Committee on Citizenship and Immigration’s report, the government is working on a response and is anticipated to release a reform plan, sometime in April 2018. The question remains, how will we reconcile the push for inclusivity with the intention of the legislation to guard against an excessive demand on health and social services? Undoubtedly, any changes will need to strike a balance with provincial health care and social service budgets. 

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