January 26, 2021
A Preliminary Exploration of Questions Related to Medical Inadmissibility Raised by COVID-19
We recently had the opportunity to update our chapter on Medical Inadmissibility in the Canadian Citizenship and Immigration Inadmissibility Law, 2nd Edition[1]. Through this process, I began to consider a number of questions raised by the COVID-19 pandemic for the determination of medical inadmissibility. This blog explores these preliminary questions. Note that for further information on the challenges to Canadian immigration represented by limits to processing of medical information in particular as a result of COVID-19, please see Mario D. Bellissimo’s recent blog.
Canadian laws around medical inadmissibility have not (yet) changed as a result of the pandemic, and the Canadian government has not indicated any intention to amend legislation and/or regulations on the basis of the spread of this virus. Still, there are clear potential long-term implications for how we assess medical inadmissibility under the category of danger to public health in particular as a result of the spread of the virus.
For reference, s. 31 of the Immigration and Refugee Protection Regulations clarifies that in determining whether an individual’s medical condition is likely to be a danger to public health, the medical officer must consider:
31. (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.
Covid-19 arguably is a medical condition that represents a threat to public health; it is after all, a contagious disease that has resulted in the almost complete closure of our borders and economy and has significantly tested the limits of our health care system and its workers. At the time of writing, almost 20,000 Canadians have lost their lives to this virus.
Given the above, we might ask:
- How will assessments of medical inadmissibility, including for short- and long-term medical conditions such as the COVID-19 virus, change?
- Can we anticipate that border officers will be stationed at airports to assess medical inadmissibility prior to individuals boarding planes to Canada? Will testing for medical conditions be implemented after landing?
- Will gradations to inadmissibility on the basis of a medical condition that is a danger to public be implemented. For example, if you have a virus whose incubation period is only 2 weeks (like COVID-19), will inadmissibility determinations be amended to be both more flexible and routine, being revisited once the incubation period has expired?
- How would we then challenge decisions, as counsel, made on the basis of contraction of a disease with a short-term incubation period?
We will of course continue to update and amend these questions, including as the Canadian governments response to the situation evolves.