December 15, 2020

A Five Minute Review of Canadian Immigration Medical Inadmissibility

Posted by Mario Bellissimo - Bellissimo Law Group PC

We see a number of cases each year where applicants or their dependents for Canadian immigrant visas are potentially denied admission to Canada on medical grounds.  The objectives of the Immigration and Refugee Protection Act (IRPA) as enumerated at section 3(1) of that legislation include a provision that reads in part “to protect the health and safety of Canadians and to maintain the security of Canadian society”[1].  These objectives are achieved in part by requiring that foreign nationals undergo medical assessments before gaining entry to Canada, either temporarily or as permanent residents. The medical evaluation and assessment of foreign nationals applying to enter Canada originated with the first Immigration Act of 1868.

Objectives of the Immigration and Refugee Protection Act

With the introduction of the IRPA on 28 June 2002, health screening of foreign nationals serves to meet the objectives outlined under section 3(1) of the Act by:

  • protecting the health of Canadians;
  • protecting the safety of Canadians; and
  • reducing and preventing excessive demand on Canada’s health and social services[2].

Section 38 of the Immigration and Refugee Protection Act

Subsection 38(1) of the IRPA sets out the basis on which a foreign national may be determined to be inadmissible on medical grounds, as follows:

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

(a) is likely to be a danger to public health;[3]

(b) is likely to be a danger to public safety; or[4]

(c) might reasonably be expected to cause excessive demand on health or social services.[5]

Notably, exemptions to findings of inadmissibility under subsection 38(1)(c) is provided under section 38(2) of the IRPA, which states:

38. (2) Paragraph (1)(c) does not apply in the case of a foreign national who

(ahas 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 a permanent resident visa as a Convention refugee or a person in similar circumstances;

(cis 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 of paragraphs (a) to (c).

Assessing Danger to Public Health under section 38(1)

Section 31 of the IRPR clarifies that in determining whether an individual’s medical condition is likely to be a danger to public health, the medical officer must 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 that the disease could have on other persons living in Canada.

Examples of diseases that are considered to pose a danger to public health include active Pulmonary Tuberculosis (TB) and untreated Syphilis. If the foreign national has either or both of these conditions, they will likely be found medically inadmissible, unless the foreign national is treated according to Canadian standards. Notably, the human immunodeficiency virus (HIV) is not considered to be a danger to public health.

Assessing Danger to Public Safety under section 38(1)

Section 33 of the IRPR provides that, when assessing whether a foreign national’s health condition might represent a threat to public safety, the medical officer must consider:  

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

(b) the risk of a 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.

Citizenship and Immigration Canada (CIC) clarifies that diagnosis with one of the following mental health problems in particular would likely cause a danger to public safety and thus render a foreign national inadmissible:

Health conditions that are likely to cause a danger to public safety include serious uncontrolled and/or uncontrollable mental health problems such as:

  • certain impulsive sociopathic behaviour disorders;
  • some aberrant sexual disorders such as pedophilia;
  • certain paranoid states or some organic brain syndromes associated with violence or risk of harm to others;
  • applicants with substance abuse leading to antisocial behaviours such as violence, and impaired driving; and
  • other types of hostile, disruptive behaviour.

Assessing Excessive demand under section 38(1)

Unlike when determining medical inadmissibility on grounds of danger to public health or safety, factors medical officers must consider in assessing excessive demand on health and social services are not as clear. Section 34 of the IRPR provides only basic guidance, stating that before determining whether an individual’s medical condition would cause an excessive demand, the medical officer must consider:

34. (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.

Section 1 of the IRPR defines these terms as follows:

Excessive demand” means

  1. a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social service costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or
  • a demand on health services or 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.

“Health Services” means

“Health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.

“Social Services” means

“Social services” means any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,

  1. that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
  2. for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.

June 1st, 2018 Temporary Public Policy Regarding Excessive Demand on Health and on Social Services

IRCC began a review of section 38 in 2016 with stakeholders (provinces, CPCs,

Embassies, Regional Medical Offices and legal professionals and later formed a Standing Committee in 2017 that invited representatives from the legal industry, organizations like the Canadian Council of Canadians with Disabilities and HIV/AIDs Legal Network as well as individuals with personal experiences. With this, the Standing Committee’s majority recommended to eliminate the policy completely, and implemented the changes in the summer of 2018. The changes were required to better align Canadian values and the inclusion of persons with disabilities and to avoid discrimination.

The law itself has not changed under section 38, although, on 1 June 2018, the Temporary Public Policy Regarding Excessive Demand on Health and on Social Services (public policy) was released by IRCC. The change in policy was brought in by the authority provided under section A25.2 of the IRPA. This public policy now effectively allows officers to exempt individuals who meet the specific eligibility criteria set out by the Minister from paragraph A38(1)(c) of the IRPA.”

“With the introduction of the new public policy on 1 June 2018, the definitions were amended as follows:

Health services: Officers should include the following costs related to health services when determining the threshold that must be overcome:

  • physician services
  • nursing services
  • laboratory and diagnostic services
  • pharmaceuticals and pharmaceutical services
  • hospital services
  • chemotherapy and radiotherapy
  • dialysis
  • psychiatric services
  • supplies related to these services”

“Social services are closely related to health services, including the following services provided by a health professional and the provision of devices related to all of the following services:

  • home care by a nurse, physiotherapist, respiratory therapist or other care provider
  • palliative care
  • psychological counseling
  • medical aids, appliances and prostheses
  • social services that provide constant supervision and care for those who are not able to integrate into society, such as:
  • residential facilities, including long-term care and substance abuse services
  • day facilities providing constant supervision, for example respite care”

“The social services for which costs will no longer be included to determine if an applicant meets the eligibility criteria and conditions under the public policy include:

  • SPED (preparation of an individualized education plan, educational assistants, etc.)
  • social and vocational rehabilitation services (rehabilitation facilities, occupational therapy, behavioural therapy, speech-language therapy, etc.)
  • personal non-professional support services means services such as assistance with activities of daily living (bathing, dressing, feeding, etc.), meal preparation, house cleaning, etc.
  • provision of devices related to those services.”

While this provides some additional information we are still left with the question of how “excessive demand” is applied to foreign nationals seeking temporary or permanent resident immigrant visas to Canada.  In my first blog of 2021, I will look at a case example – chronic kidney disease (CKD) and excessive demand.

Thank you for reading and please stay safe.