Latest posts by Mary Keyork (see all)
- What Is A Judicial Review At The Federal Court Of Canada? - May 19, 2016
- By having a licensed lawyer submit the application on your behalf, you: - May 19, 2016
- My Permanent Resident Card Expired, Can I Renew It? - May 19, 2016
Medical inadmissibility is a complicated subject and while we cannot address every set of circumstances that can lead to a finding of inadmissibility on medical grounds, we can provide the following brief overview.
What Does It Mean to Be Medically Inadmissible?
There are two grounds for medical inadmissibility:
(1) a risk to public health or safety; and
(2) excessive demand for health or social services.
Essentially, this means that foreign nationals can be refused entry to Canada if they have a medical condition that is considered a threat to the public health or safety of Canadians or that will create a demand on medical or social services that will impact the quality or availability of healthcare for Canadians. If a foreign national’s dependent family member is medically inadmissible, all members of the family will be denied entry, whether the dependent is planning to accompany the applicant or not. The exception is that spouses, common-law partners and minor children who are sponsored by Canadian family members are exempt from the excessive demand evaluation.
Risks to public health and safety include contagious diseases that could put Canadians at risk, and can also extend to mental health and addictions issues causing violent or abusive behaviour.
Excessive demand is more complicated. When assessing whether a foreign national will cause an excessive demand for health or social services, officers must consider all types of services, including doctor’s and hospital visits, hospital stays, surgeries and procedures, as well as social services such as government-funded personal support, disability support, educational support, mental health services or housing services. Officers will not only consider the cost of services, but also the availability of services and the potential for an increase in wait times for Canadians.
When considering medical inadmissibility, officers look at whether a foreign national will cause excessive demand over the next five years, and in some cases up to ten years, if there is evidence to suggest significant costs past the five-year period. To determine excessive demand, officers compare the estimated cost of services and medical care a foreign national would need, to the average per capita cost for a Canadian. If the cost is deemed to be higher than the average over a 5- or 10-year period, the officer will likely make a finding of medical inadmissibility.
The cost threshold is determined every year. In 2017, it was CAD $6,655 per year, which would be CAD $33,275 over five years.
Applicants with Special Needs
Foreign nationals with special needs, or who have children with special needs, should be aware that conditions including autism spectrum disorder, intellectual disabilities, deafness or blindness will be assessed for excessive demand and can lead to a finding of medical inadmissibility.
If you or your dependent have existing special needs, it is recommended that you discuss them with an immigration lawyer before making an application so that you understand any risks, and develop a strategy to deal with the issue and try to either prevent or overcome a finding of inadmissibility.
How should I Respond to a Request for More Information?
In most cases, officers request individuals with medical issues to complete an additional medical exam and/or provide additional information. If the officer intends to refuse an application on grounds of medical admissibility, they will normally provide the applicant with an opportunity to respond to the finding and provide additional submissions and documentation. The response should be extremely carefully crafted and include details of how the applicant will not pose a threat to the health or safety of Canadians and/or why they will not be a burden on Canada’s health and social services, with proper supporting documentation. This could include medical reports from specialists or other expert reports, as well as a detailed plan of care along with the means of payment for such care.
It is important to note that having personal finances to cover healthcare costs is not enough to overcome a finding of medical inadmissibility. This is because most health and social services are free in Canada, and there is no way that the government can charge a foreign national for certain services. However, officers will look at each case individually and holistically, and an individual’s ability to pay for various services may be taken into account. Similarly, the existence of other types of support, such as a family member who could assist with care, is highly relevant.
Given the complicated nature of medical admissibility and the detailed government policies and procedures that officers have to follow in these situations, it is helpful to get a lawyer with expertise in this area to assist you in preparing a response.
Can I Appeal a Refusal on Medical Grounds?
Foreign nationals applying for permanent residence can apply for leave and judicial review to the Federal Court of Canada if they believe that there has been an error in the determination of their case. A judicial review application is narrower in scope than an appeal, and it is essential to obtain a legal opinion from a qualified lawyer to determine if there is any basis for such an application. If a foreign national has been sponsored as a member of the family class, the sponsor can appeal the refusal to the Immigration Appeal Division of the Immigration and Refugee Board.
Ultimately, if you are facing a potential finding of medical inadmissibility, it is best to prepare a strong submission to the officer and try to avoid refusal. If your application is ultimately refused, your lawyer will provide you with advice on whether an application to Federal Court or the IAD is available and viable.