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Last updated on June 23rd, 2020

Section 38 of Canada’s Immigration and Refugee Protection Act provides that a foreign national is inadmissible on health grounds if their condition is (a) likely to be a danger to the public, (b) is likely to be a danger to public safety, or (c) might reasonably be expected to cause excessive demand on health or social services.  The excessive demand inadmissibility provisions are designed, in part, to reduce the impacts of immigration on Canada’s publicly funded health and social services systems.

People who have a medical condition should not immediately assume, however, that they will be inadmissible to Canada.  First, certain types of immigrants are exempted from excessive demand inadmissibility.  Second, in 2018, the Government of Canada increased the threshold for excessive demand and also excluded certain types of health and social services from rendering someone inadmissible.  Third, those with medical conditions may not be inadmissible if they can show that they will not be a burden on Canada’s publicly funded health and social services systems.  Fourth, the data suggests that the immigration applications of many applicants who are initially declared medically inadmissible are approved.

Immigrants Exempted from Excessive Demand Inadmissibility

Excessive demand inadmissibility does not apply to the spouse, common-law partner or child of a Canadian citizen or permanent resident who is sponsoring them to immigrate.

It also does not apply to refugees and protected persons.

The 2018 Changes

On June 1, 2018 the Liberal Government of Canada enacted a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy“)

In order to understand the changes it is necessary to understand some key terms.

Section 1 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) defines excessive demand as:

(a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following an individual’s most recent medical exam,

 » Read more about: Excessive Demand  »

Section 109 of the Immigration and Refugee Protection Act provides that the Refugee Protection Division (the “RPD“) may vacate a decision to allow a claim for refugee protection if it determines that the decision was obtained through misrepresentation. Specifically, it states:

Vacation of refugee protection

109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Rejection of application

(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.

Allowance of application

(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.

The approach to an application to vacate a decision granting refugee status involves two steps:

First, the RPD must find that the decision granting refugee protection was obtained as a result of a direct or indirect misrepresentation, or a withholding of material facts relating to a relevant matter; and

Second, the RPD should consider whether there remains sufficient evidence that was considered at the time of the positive determination to justify refugee protection and, if so, the RPD may reject the application to vacate, notwithstanding the misrepresentation

The Immigration and Refugee Board’s statistics on vacation hearings can be found here.

Vacation applications
Finalized
Pending

Allowed
Dismissed
Abandoned
Withdrawn & Other
Total

2020 (January to March)
21
31
1
0
2
34
329

2019
210
279
13
0
3
295
342

2018
173
369
5
0
14
388
427

2017
238
70
0
0
3
73
643​

2016
215
21
0
0
6
27
478

2015
141
61
6
0
3
70
283

2014
240
135
13
0
7
155
212

2013
128
95
13
0
14
122
127

Pursuant to Justice Russell’s decision in Bafakih v.

 » Read more about: Vacating Refugee Status  »

Canada is currently in the middle of the COVID-19 pandemic.  Its borders are closed to discretionary travel.  Immigration, Refugees and Citizenship Canada has suspended the processing of most temporary residence applications.  The Canada Border Services Agency has put a pause on removing people from Canada.  Civil servants are largely working from home.  The Royal Bank of Canada is forecasting that 170,000 fewer people will become immigrants than what was planned pre-COVID-19.

At the same time, many provinces have begun reopening their economies.  The Orders in Council closing the Canada – US border and Canada’s airports to international travel are supposed to expire on June 21 and June 30 respectively, although they may be extended.

The question that many are asking is what comes next for Canada’s immigration system.

Backlogs

While the processing of most temporary residence applications has been suspended during COVID-19 the ability of foreign nationals to submit them has continued.  The implication is obvious.  When COVID-19 ends there will be a massive backlog of applications.   Significant processing delays should be expected.

The systemic delays will not be limited to the ability of visa officers to process applications.  The collection of biometrics at Service Canada and most Visa Application Centers has been suspended since mid-March.  When these centers re-open applicants will need to schedule appointments.  Unless capacity is expanded each day that they remain closed is a day that will need to be added to how long it will take to schedule an appointment in the future.

Prior to COVID-19 the deadline to give biometrics after being instructed to do so was 30 days. At the start of COVID-19 this was extended to 90 days. New biometric instruction letters do not have a deadline. It would not be surprising if applicants in the future will be told that they have six months to provide biometrics until the backlog is clear.

 » Read more about: The Other Side of COVID-19  »

While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications.  This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages.  Many applicants were also barred from entering Canada for five years due to misrepresentation.

As discussed below, the increase in misrepresentation findings in open spousal work permit applications has been a deliberate Immigration, Refugees and Citizenship Canada (“IRCC”) policy choice.  Canadian visa officials are explicitly trying to “send a message” to communities in India where they believe that marriages of convenience are increasingly occurring.  Federal Court jurisprudence on the procedural fairness required in such cases is still developing, and it remains to be seen whether the courts are going to impose greater procedural fairness requirements than what is generally expected in temporary residence applications.

In order to understand the e-mails and internal public policies obtained through Access to Information Act requests below, it is important to understand that there are two types of open-spousal work permits.   The first is for the spouses or common-law partners of skilled workers, which fall under Labour Market Impact Assessment (“LMIA”) exemption classification C-41.  The second is for spouses or common-law partners of full-time international students in Canada, or LMIA exemption classification C-42. Other acronyms to be aware of include R4, which is the Canadian immigration regulation that prohibits marriages of convenience (or MOCs) from Canadian immigration programs, and A40, which is the Canadian immigration legislative provision which bans people who have committed misrepresentation from immigrating to Canada for five years.

 » Read more about: Open Spousal Work Permits and Marriage Genuineness  »