Refused based on medical inadmissibility?

Have you been refused based on medical inadmissibility? At BLG we specialize in solving and arguing a wide variety of medical inadmissibility cases. To find out more information on how we can help you please select one of the following:

Basic Considerations
Key Legislative Definitions and Legislative Thresholds
When Is Someone Inadmissible?
Practical Tips

Related Frequently Asked Question (FAQ):

Can We Sponsor our Sick Brother?

Canadian Immigration – Medical Inadmissibilities

The starting point for Canadian medical immigration inadmissible cases is the 2005 Supreme Court of Canada decision in Hilewitz and De Jong v. Canada (M.C.I.) – a case that took several years to litigate and I am proud to say I was a member of the legal team that won the case against Citizenship and Immigration Canada.

Section 38(1) Health Grounds: states a foreign national is inadmissible on health grounds if their health condition:

a. is likely to be a danger to the public health

b. is likely to be a danger to public safety

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

Subsection (c) is the section most open to debate, litigation and interpretation.

Section 38(2) carves out certain exceptions in that paragraph 1(c) do not apply in the case of a foreign national who:

a. who has been determined to be a member of the family class and to be the spouse, common law partner or child of a sponsor within the meaning of the regulations

b. has applied for permanent residence visa as a Convention refugee or a person in similar circumstances

c. is a protected person, or

d. is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any paragraphs (a) to (c)

Before concluding whether a foreign national’s health condition is likely to be a danger to public health, an officer who is assessing the foreign national’s health condition shall consider:

a. any report made by a health practitioner or medical laboratory with respect to the foreign national

b. the communicability of any disease that the foreign national is affected by or carries; and

c. the impact the disease could have on other persons living in Canada

Before concluding whether a foreign national’s health condition is likely to be a danger to public safety, an officer who is assessing the foreign national’s health condition shall consider:

a. any reports made by a health practitioner or medical laboratory with respect to the foreign national; and

b. the risk of sudden incapacity or of unpredictable or violent behaviour of the foreign national that would create a danger to the health or safety of persons living in Canada

Last, before concluding whether a foreign national’s health condition might reasonably be expected to cause excessive demand, an officer who is assessing the foreign national’s health condition shall consider:

a. any reports made by a health practitioner or medical laboratory with respect to the foreign national; and

b. any condition identified by the medical examination

One of the key considerations that flowed from the decision was the requirement for a medical officer and a visa officer to conduct an individualized assessment. Therefore the analysis must focus on the individual’s need for health and social services and not the condition in general terms. The Supreme Court was critical of an approach, which attaches a cost assessment to the disability rather than to the individual. Debate still surrounds what classes of immigrants this type of assessment should be afforded to when an intending immigrant applies for entry to Canada.

Q. What chances do we have if we challenge a medical finding?

A. The issue often is if the Applicant’s needs would cause an excessive demand, and specifically, that “the medical condition might reasonably require services the cost of which would likely exceed the amount spent on the average Canadian over a five year period.” The chances of successfully challenging the decision depends on if the officer properly considered the doctor’s prognosis, the current condition and what exactly is the average demand by a Canadian on healthcare funds in a similar circumstance.

Specifically, was the condition itself rather than the individual’s circumstances given priority in rendering a decision? For example:

Will the applicant remain on the same treatment regime for the renal transplant? Was there any specific consideration of the Applicant’s financial resources, drug therapy and blood counts? In particular, have the counts remained stable and/or improved over the past several years? If the kidney transplant was successful and, with the administration of a low cost drug plan, does the Applicant remain employed and enjoy a gainful existence?

In the end, is it evident anywhere in the reasons that a meaningful and comprehensive analysis of the Applicant’s lifestyle, means and condition as related and interrelated components of a proper assessment, been fully, individually and collectively considered?

If some or all of these factors were not considered the decision was rendered with a “cookie-cutter methodology” and thus, the officer may have failed to individualize the Applicant’s case. This would constitute an incorrect application of s.38 (1) (c) and warrant a setting aside of the decision. These cases are clearly complex and worthy of legal consultation before deciding if a person’s medical condition will in fact be a bar to admission in Canada.