Medical Inadmissibility
Has your immigration case been refused because of medical inadmissibility?
Have you received a procedural fairness letter?
At Bellissimo Immigration Law Group PC we specialize in immigration medical inadmissibility cases.
Dealing with a medical issue alone can be life changing, having to deal with medical and immigration issues at the same time is unbelievably challenging. The good news is that for decades we have taken this journey with so many wonderful individuals and families and helped them navigate the process and realize their dreams. At Bellissimo Immigration Law Group PC we have litigated medical immigration cases right to the Supreme Court and are responsible for most the cases that have shaped this area of law. Continuing the brilliant legacy began by Mr. Cecil L. Rotenberg Q.C. over fifty years ago. This area of law is extremely complex and good advocacy can be the difference so ensure you are well represented. Let’s review some of the general principles involved.
Who can be found to be medically inadmissible?
The law says that a foreign national, which is anyone who is not a Canadian citizen or permanent resident, can be found to be medically inadmissible on 1 of 3 separate grounds:
- You are likely to be a danger to public health;
- You are likely to be a danger to public safety; or
- You might reasonably be expected to cause excessive demand on health or social services.
What does it mean to be “a danger to public health” or “a danger to public safety”?
Assessments if a foreign national’s medical condition is likely to cause a danger to public health generally requires consideration of (1) the communicability of the disease and/or (2) the impact it could have on persons living in Canada . Examples of conditions that fit within this description and have resulted in medical inadmissibility include Pulmonary Tuberculosis and untreated syphilis.
Assessments of danger to public safety take account if a foreign national’s medical condition will likely result in sudden incapacity, or unpredictable or violent behaviour.
What is excessive demand?
It means you will not be allowed to enter or remain in Canada because your health condition has been determined to cause an excessive demand on health or social services. This can mean:
- the need for health services to treat your condition would negatively affect medical service wait times in Canada and/or
- the treatment you need for your condition would likely cost more than the Canadian average for health and social services (per person). HINT: It does not have to be proven to be true, just more likely than not.
There is a clear threshold available now which is equal to 3 times the Canadian per capita cost for health and/or social services over a 5-year period. Presently, the annual cost threshold is set at $24,057, or $120,285 over 5-years.
The changes started with the Temporary Public Policy Regarding Excessive Demand on Health and Social Services when the definition of “social services” was amended limiting medical assessments of excessive demand to only those publicly funded social services that are related to health services and/or the provision of continual supervision and care. In doing so, this excluded special education services and social and vocational rehabilitation services. HINT: be mindful though not all social services are exempted.
On 4 March 2022 IRCC announced law changes, determined from the Public Policy Regarding Excessive Demand on Health and Social Services :
- IRCC increased the excessive demand cost threshold to 3 times the average amount that federal, provincial and territorial governments spend per capita on certain health and social services;
- The 10-year time period was eliminated from excessive demand calculations and the five-year time period has been universally applied;
- “Health services” and “social services,” as used in excessive demand determinations have been redefined, by:
- removing reference to certain social services like special education services, that persons with disabilities require to help them overcome limitations to their participation in society (social and vocational rehabilitation services, and personal support services);
- focusing on publicly funded social services that provide constant supervision and care for those who are not able to integrate into society; and
- refining the definitions to provide clarity to the concepts of majority of funding and of publicly funded services, as well as eliminating any overlap between the definitions of health services and of social services.
- Clarifications have been made to which officers are responsible for reviewing medical and non-medical information for applications that deal with excessive demand assessments.
How is an Admissibility decision made?
Most foreign nationals hoping to travel and all Foreign national applying to migrate to Canada must undergo an immigration medical examination, unless in rare circumstances they are exempt. After the examination has been completed by the Panel Physician, he or she makes a decision on the “Grade”. A Foreign national either receives a “Grade A” or “Grade B”:
- Grade A indicates that there are no abnormal findings present and no significant abnormal history.
- Grade B indicates that there are significant abnormal findings present and/or an abnormal history.
Usually if a foreign national receives a Grade B, admissibility is a concern and the Regional Medical Office begins an assessment of the results of the foreign national’s medical exam results and officers decide if the foreign national’s health condition falls within the parameters for admissibility or inadmissibility
Before a decision is made on admissibility, the foreign national is provided with an opportunity to respond to the Officer’s “Procedural Fairness Letter (PFL). Usually, a foreign national will have 60 days to respond.
How can Bellissimo Immigration Law Group PC help?
Many medical and certain psychological conditions can lead to refusal of an immigration visa, on both temporary and permanent categories. It is critical to respond to the PFL with a medical and legal immigration plan (called a mitigation call) that is well researched, supported and presented in a convincing and substantive way in order to have a chance to overcome a medical inadmissibility finding. The strict definition of mitigation reads to make less severe, serious, or painful. In this context it means to highlight the health or social service costs or addition to a waiting list is less severe and under the threshold.
If a medical inadmissibility finding is made, it is permanent, so the response to the PFL is extremely important, and you only have the one opportunity to present your plan. We routinely work on plans for Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration Appeal Division. We have fought hard over the past decades to bring the factors considered by officers assessing medical inadmissibility to where they are today, now part of IRCC’s policy, having to take into account a foreign national’s individual circumstances, and ensuring consideration of an applicant’s plan to offset any costs with their resources is measured. As well to ensure there is not an inadmissibility finding because of adding to existing medical wait lists in Canada. Finally, ensuring that the appropriate officers undertake the accurate steps and make decisions they are empowered to make.
One of the most common mistakes we see in medical inadmissibility cases is the decision not to challenge the health or social service excessive demand filing and trying to mitigate and instead seeking humanitarian and compassionate (H&C) relief. Although H&C relief can be effective in certain cases in many cases it is not necessary nor the best strategy to overcome the initial medical inadmissibility finding.
We have successfully helped to prepare mitigation plans for so many different medical conditions over several decades and some of the more common conditions we deal with for both children and adults include:
- Chronic Kidney Disease
- Developmental Delay
- Heart Disease
- Diabetes & Hypertension
- Cancers
- Autoimmune Disease, i.e.: Multiple sclerosis Lupus, Ankylosing Spondylitis, Rheumatoid Arthritis, etc.
- Inflammatory bowel diseases, i.e.: Crohn’s disease and Ulcerative colitis
- Hepatitis B and C, and Liver Disease
- Blood Disorders, i.e.: Sickle Cell Disease and Thalassemia
- Bladder disease
- Lung disease, i.e.: Tuberculosis, Chronic obstructive pulmonary disease (COPD), Cystic fibrosis, Pneumoconiosis, etc.
- Neurological Disorders, i.e.: Alzheimer’s Disease, Dementia, Parkinson’s, Strokes, etc.
- Psychological/psychiatric disorders, i.e.: major depression, bipolar disorder, or schizophrenia
- Addictions to drugs or alcohol
Do not wait until your immigration visa is refused. Instead, be proactive. If you or your dependent family member has a medical condition, contact us to discuss. If one of your immediate family members is medically inadmissible you and your whole family may be too! Timing is critical as steps can be taken before a decision is made to alter the outcome. Please click below to read what our client’s whom we have assisted with medical cases say.
Important Immigration Court Decisions
