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, 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

(b) 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.

For most applicants the key two things to note in that definition are (a) there is a distinction between health services and social services, and (b) the medical inadmissibility threshold is reached when an immigrant’s anticipated health and social services are likely to exceed the Canadian per capita average over five years.

The Regulations define “health services” as 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” are defined as:

as 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,

(a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and

(b) 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.

The Public Policy specifies that health services include physician services, nursing services, laboratory & diagnostic services, pharmaceuticals & pharmaceutical services, hospital services, chemotherapy & radiotherapy, dialysis, psychiatric services, and supplies related to the preceding services.

The Public Policy further specifies that social services includes home care (by a nurse, physiotherapist, respiratory therapist, etc.), palliative care, psychological counseling, medical aids, appliances & prostheses, residential facilities (long-term care, substance services, etc.), and day facilitates providing constant supervision (respite care, etc.)

Importantly, the Public Policy provides that the following social services are no longer counted towards determining whether someone is medically inadmissible to Canada:

  • special education services (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.

The services have traditionally been some of the most common resulting in people being medically inadmissible to Canada.

As well, the Public Policy also increases the threshold from the Canadian per capita average for health and social services to three times the average.

Accordingly, on January 2, 2020 Immigration, Refugees and Citizenship Canada announced that because the average Canadian per capita health and social services cost had increased from $6,839 to $7,068, the 2020 medical inadmissibility threshold was $21,204.

Procedural Fairness and Not Burdening the Public System

The jurisprudence has developed separate procedural fairness and reasonableness requirements for excessive demand on health services and excessive demand on social services.

With regards to health services, because they are typically publicly funded, and because there is no cost-recovery mechanism, the Federal Court of Canada has held that an applicant’s willingness to pay for treatment is not a relevant factor in determining whether someone is inadmissible.  In the leading case on the matter, Deol v. Canada (Minister of Citizenship and Immigration), 2002 FCA 271, the Federal Court of Appeal stated that IRCC “does not have the power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces or promises to reimburse the costs of any services required.”

There are narrow exceptions to this. In Companioni v. Canada (Minister of Citizenship and Immigration), 2009 FC 1315, the Federal Court allowed some flexibility in assessing an applicant’s ability to defray the costs of outpatient medication.  Medical officers accordingly have an obligation to consider the prices of different types of outpatient drugs, the ability to opt out of publicly fund drug plans, and the option of private insurance.  Our firm has successfully set aside refusals where this was not done.

With regards to social services, as a result of the Supreme Court of Canada’s decision in Hilewitz v. Canada (M.C.I.), De Jong v. Canada (M.C.I.), 2005 SCC 57, and the subsequent Federal Court of Appeal decision in Colaco v. Canada (M.C.I.), 2007 FCA 282, applicants are entitled to an assessment of the probable demand that their disability or impairment might place on social services.  Applicants are required to provide sufficiently detailed plans and include evidence of ability and intent to reduce the cost and impact on Canadian social services.

As a result of the jurisprudence, there are now several steps that occur before an individual can be determined to be medically inadmissible to Canada.

First, a medical officer will provide a visa officer with a medical opinion specifying the excessive demand on health and/or social services.  The medical officer must write a list of the expected required social services, health services, outpatient medication and overall anticipated costs.

Second, the visa officer will send the applicant a procedural fairness letter, and ask them to complete a Declaration of Ability and Intention. The visa officer must explain that the applicant can challenge the diagnosis, challenge the list of required services and/or demonstrate that they have a plan to obtain all the services and manage the associated costs.

A Declaration of Ability must be supported by a detailed, credible and viable plan. The factors that an officer may consider include:

  • If expenses must be incurred, is it likely that the applicant will have the financial ability to cover those expenses?
  • What is the applicant’s prospect of employment? Will the proposed employment cover normal living expenses and the cost of the health and social services required?
  • If the applicant intends to receive support from a family member, another individual or an organization, how likely is it that this organization will provide free or cost-reduced assistance for the period assessed?
  • At what point is the applicant in terms of planning? If they are outside Canada, have they already made all the arrangements for the services to be delivered upon arrival? If the applicant is in Canada, have they relied on publicly funded services in the past?

The Data on Medical Inadmissibility

As is evident from the above, just because someone does not pass a medical exam does not mean that their immigration application will be refused.

From 2013 – 2016 the number of individuals who were determined to be medically inadmissible to Canada were as follows:

Immigration Application Type 2013 2014 2015 2016

Total

 

Permanent resident 1,042 887 524 628 3,081
Temporary resident 137 119 97 87 440
Not Classified 58 54 47 280 439
Grand Total 1,237 1,060 668 995 3,960

During this period, the top primary medical diagnoses resulting in a medical inadmissibility finding were HIV Positivity – Asymptomatic, Renal Failure – Chronic, Intellectual Disability, Developmental Delay, Infantile Autism, Senile Dementia, Nervous System Disorder, Hepatitis B, Ischemic Heart Disease – Chronic, Hepatitis – Chronic and Congenital Anomaly.

The number of inadmissible immigration medical examinations by year of assessment, broken down by primary medical diagnosis, was as follows:

Primary Medical Diagnosis

2013 2014 2015 2016 Total

AIDS: Acquired Immunodeficiency Syndrome with or without Other Conditions

0 0

Alzheimer’s Disease

10 10 5 15 40

Aneurysm

0 0

Aortic Valve Disease 14 5 0

21

Behaviour Disorder 5

8

Bipolar Disorder – Manic-Depressive Psychosis

0 0

Blood, and Blood-Forming Organ, Disease

5 8 5 19

Cardiomyopathy

30 22 5 18 75

Cerebrovascular Disease

31 19 8 13

71

Colon – Malignant Neoplasm 6

15

Congenital Anomaly 18 29 16 38

101

Congestive Heart Failure 5 7

17

Connective Tissue Disorder

13 11 10 13 47

COPD: Chronic Obstructive Pulmonary

Endocrine Gland – Malignant Neoplasm 12 16 11

40

Female Breast – Malignant Neoplasm

12

16 11

40

Genitourinary Organs – Malignant Neoplasm 17 13 37
Haemophilia 0 7
Heart – Congenital Anomaly

7

7 9 26

Heart Failure

15

5 26

Hepatitis – Chronic

23

31 36 18

108

Hepatitis “B” 25 9 79 11

124

HIV Positivity – Asymptomatic 135 156 130 136

557

Hypertension

24 32

Impaired Hearing or Deafness

20

17

19

12

68

Impaired Vision or Blindness

5

6

5

5

21

Inactive TB

0

0

0

Infantile Autism

72

61

39

61

233

Intellectual Disability

151

144

39

113

447

Ischae

Malignant Melanoma – Skin 0

19

Mitral Valve Disease 6 7 17

Multiple Myeloma

0

Multiple Sclerosis

6 10 8 27

Muscular Dystrophy

5 0 9

Neoplasm of Unspecified Nature

7 6 7

21

Nervous System – Malignant Neoplasm

11

Nervous System Disorder 34 29 25 49

137

Nonspecific Abnormal Findings 5 13

25

Nonspecific Abnormal Findings on Radiological

0 0 7

Organ or Tissue Transplant

7 8 21

Osteoarthritis

15 22 10 48

Parkinson’s Disease

17 6 9

34

Peripheral Vascular Disease 0 0

Personality Disorder 0 0

Pulmonary Fibrosis 0 0

5

Pulmonary Tuberculosis – Inactive

0 8

Pulmonary Tuberculosis – Inactive – Previously Active

0

0 0
Pulmonary Tuberculosis – Active 14 9 9 17

49

Rectum – Malignant Neoplasm 5

12

Renal Failure – Chronic

150 120 81 149 500

Renal Function Impairment Disorder

0 0 0 5 5

Schizoaffective Psychosis

5 12
Schizophrenia 14 9 9 8

40

Senile Dementia 78 45 13 22

158

Small Intestine – Malignant Neoplasm 0 0

Stomach – Malignant Neoplasm

5 0 9

Trachea, Lunch – Malignant Neoplasm

41 24 11 79
(See Narrative) 31 7 0 0

38

Unspecified 0 0

Total 1,237 1,060 668 995

3,960

Roughly half of the above for each year were for permanent residence applications.

However, it is important to note that not all medical inadmissibility findings resulted in a negative determination.

From 2013-2016 the number of applications that were approved despite there being a negative medical exam because of an approved Notice of Ability and Intent or an ultimate determination that costs could be minimized was 262, 224, 104 and 116 respectively.  For some of the more common types of medical conditions the data regarding initial finding of inadmissibility vs the final decision of excessive demand showed that applicants were able to overcome most negative determinations.

As well, from 2013 – 2016 the approval rate when applicants requested that humanitarian & compassionate considerations supersede the inadmissibility was exceptionally high, and in fact exceeded 90%.  The data below is separate from the approvals mentioned above.

To conclude, while Canadian immigration legislation continues to prohibit people who impose an excessive demand on immigrating to Canada, people with medical conditions should not necessarily assume that their applications will be rejected.