MEDICAL INADMISSIBILITY

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.   

A large portion of my practice focuses on medical inadmissibility cases.  I deal with several cases a year with applicants of all ages from many areas of the world and with various medical conditions.

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

• is likely to be a danger to the public health   
• is likely to be a danger to public safety
• 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:

• 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
• has applied for permanent residence visa as a Convention refugee or a person in similar circumstances
• is a protected person, or
• 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:

• any report made by a health practitioner or medical laboratory with respect to the foreign national
• the communicability of any disease that the foreign national is affected by or carries; and
• 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,

• any reports made by a health practitioner or medical laboratory with respect to the foreign national; and
• the risk of sudden incapacity 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:

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

• Medical Examinations:

Medical Certificate – Every foreign national referred to in subsection 38(1) who seeks to enter Canada must hold a medical certificate, based on the most recent medical examination to which they are required to submit under that subsection within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and, unless subsection 38(2) of the Act applies, is not reasonably expected to cause excessive demand.

What you need to know about the procedure:

• medically inadmissible applicants: no expiry date of medical validity
• in situation where TRP is permitted to travel to Canada even where medically inadmissible, a new examination for public health reasons may be required
• the validity of the foreign national visa must not exceed the immigration medical validity

Procedure: Temporary Resident and Permanent Resident Results:

• Results cannot be used interchangeably such that an applicant who is medically inadmissible as a TR must be medically re-evaluated before the same conclusion can be made on a PR application.
• an applicant who is inadmissible as a PR may be admissible as a TR
• an applicant inadmissible as a TR may be admissible as a PR where the condition improves between applications
• a new medical examination will be required where this occurs
• applicants are responsible for informing the officer that they previously applied under a different category

Procedure: Evaluation TR applications for Medical Treatment:

• both the health and good faith of the TR applicant is assessed by the Officer
• application should be refused where the applicant’s health poses a risk to the public’s health or safety (s. 38(1)(a)(b) IRPA);
• the results of any requested medical examination should only address the issue of medical inadmissibility

ENF 2/OP 18 Inadmissibility:

• When an officer is of the opinion that a foreign national may be a member of an inadmissible class described in subsection 38(1) of the IRPA, the officer may require persons described within the provisions of R30 to undergo a medical examination;
• Conditions may be imposed pursuant to Reg. 32 requiring the person to report at a specified time and place for a medical examination and to provide proof, at a specified time and place, of compliance with the conditions imposed;
• Medically inadmissibility results from the opinion of the officer following his / her:
• observation: the person may appear to be sick or may require assistance, and
• questioning: has the person recently been discharged from hospital? Has the person recently been sick? Is the person taking medication for a serious illness?
• Pursuant to regulation 29 and for the purposes of paragraph s. 16(2) (b) of the IRPA, a medical examination includes any or all of the following:
• a physical examination
• a mental examination
• a review of past medical history
• laboratory tests
• diagnostic tests
• a medical assessment of records respecting the applicant

Reg. 30(4) provides: every foreign national referred to in Reg. 30(1) who seeks to enter Canada must hold a medical certificate that indicates that they are not inadmissible on health grounds and that is based on the last medical examination to which they were required to submit within the previous 12 months.

-- Action at international airports

• Where it is believed that a person may be medically inadmissible at an international airport, normally, after consultation by telephone with a medical officer with the Immigration Medical Services Division, the examination should be adjourned under the provisions of s. 23 IRPA.
• The person would then be required to undergo a medical examination pursuant to reg. 30(1) (d) by a Panel Physician in Canada.
• Officers must ensure they impose appropriate conditions as allowed for under reg. 32 in addition to those conditions that must be imposed pursuant to reg. 43(1); that is, that the person is required to report at a specified time and place for a medical examination and is to provide proof, at a specified time and place, of compliance with conditions imposed.
• Officers are to make every effort to make the appointment for the person. All appointments should be scheduled for the earliest possible date.

RELEVANT LEGISLATION

IRPA

s. 38(1) Health Grounds – A foreign national is inadmissible on health grounds if their health condition

• is likely to be a danger to the public health;
• is likely to be a danger to public safety
• might reasonably be expected to cause excessive demand on health or social services

s. 38(2) Exception – Para. 1(c) does not apply in the case of a foreign national who (see s.24 of the IRPR)

• who has been determined to be a member of the family class and to be the, common law partner or child of a sponsor within the meaning of the regulations
• has applied for permanent residence visa as a Convention refugee or a person in similar circumstances
• is a protected person, or
• 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)

IRPR

s. 31 Public Health – 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:

• any report made by a health practitioner or medical laboratory with respect to the foreign national
• the communicability of any disease that the foreign national is affected by             or carries, and
• the impact the disease could have on other persons living in Canada

s. 33 Public Safety – 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:

• any reports made by a health practitioner or medical laboratory with respect to the foreign national; and
• the risk of sudden incapacity of unpredictable or violent behaviour of the foreign national that would create a danger to the health or safety of persons living in Canada

s. 34 Excessive Demand - 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,

• any reports made by a health practitioner or medical laboratory with respect to the foreign national; and
• any condition identified by the medical examination

s. 24 IRPR Exception to Excessive Demand – For the purpose of subsection 38(2) of IRPA, a foreign national who has been determined to be a member of the family class is exempted from the application of paragraph 38(1)(c) of IRPA if they are

• in respect of the sponsor, their conjugal partner, their dependent child or a person referred to in paragraph 117(1)(e) or (g) ; or
• in respect of the spouse, common-law partner or conjugal partner of the sponsor, their dependent child

NB (excessive demands) – OP 15 Medical Procedures further provides:

• R. 34 and R. 139(4) reiterates the exceptions set out above, but further provides that these persons must undergo medical examinations for purposes of public health and public safety only.
• If the status of the applicant changes a new medical assessment is required: this assessment will consider excessive demands.

OP 15 – Medical Procedures provides:

• where a finding of medical inadmissibility is made, applicants must be permitted to respond
• The applicant has a minimum of 60 days from the date of the letter of notification to respond
• Failure to respond or supply new information within the time permitted will result in a refusal of the applicant’s application

Pursuant to OP 21 – Appeals and Litigation, the following is CIC practice:

“If new medical information is provided during the appeal process and the medical officer determines that a new examination is warranted, the visa office must:

• contact the applicant to request photographs;
• issue new medical instructions within 30 days;
• advise the applicant that a new medical examination must be conducted within 30 days; or if that is not possible, the visa office must be advised, before the end of the 30-day period, of a date of a medical appointment. Failure to comply will result in the termination of the medical reassessment process;
• indicate in CAIPS the date on which the new medical instructions were issued;
• forward new assessment by the medical officer to the hearings officer with a copy to the IAD;
• advise the hearings officer if the applicant does not comply with the instructions to undergo a new medical examination.

Appeals may be withdrawn by DOJ where there has been an improvement in the Applicant’s medical condition such as to remove them from the earlier conclusion of inadmissibility.

Practical Tips

1. Have a medical specialist assess the progression of the condition.

2. Check if surgical intervention or other big budget costs have already been covered in the home country.

3. Consider family history where appropriate.

4. Ensure you have checked what social services are covered federally or provincially and what the opt out provisions are for same.

5. Make use of both an administrative pricing medical specialist and a medical specialist for the health condition where necessary.

6. Confirm the cost of drug therapy and if any other plans (i.e. different drug) could reduce costs.

7. Review potential family contributions to the care of the individual.

8. Consult appropriate and fact similar case law for guidance.

9. Consider the timing and appropriateness of a section 24 TRP application.

10. Ensure TRP requests are well documented and specifically addressed in your submission