Under the Immigration and Refugee Protection Act, all foreign nationals applying for permanent residency, and certain foreign nationals applying for temporary residency, are requested to undergo an immigration medical examination (“IME“) to determine if they are inadmissible on health grounds.
A person will be inadmissible to Canada on health grounds if they are a danger to public health, a danger to public safety, or if they are likely to pose an excessive demand on the health and social services (“Excessive Demand“). The current policies on HIV testing exist because Citizenship and Immigration Canada (“CIC“) determined that people with HIV may pose a danger to public health. As well, based on CIC health data, migrants have at least 10 times the risk of being infected with HIV compared to the Canadian population. Finally, several high profile cases involving permanent residents who were criminally convicted for not informing their sponsor partners about their HIV positive status led to negative publicity for CIC. Indeed, the first Canadian convicted of first degree murder for having transmitted HIV to two persons who subsequently died from HIV was a former refugee.
Notwithstanding the above, since CIC began introducing mandatory HIV testing in 2002, the key reason has been Excessive Demand.
As part of the HIV testing protocol, pre-test counselling is provided to all foreign nationals tested for HIV, while post-test counselling is offered to those found HIV positive. In 2003, CIC implemented an “automatic partner notification” process for sponsored spouses examined overseas. The reason for this was simple. Because s. 38(2) of the Act provided that Excessive Demand could not render someone inadmissible in the Sponsored Family Class, CIC felt obliged to alert sponsors to the principal applicants’ condition. Automatic Partner Notification provides applicants in the Family and Dependant Refugee Classes who test positive for HIV 60 days to voluntarily disclose their HIV-positive status to their partner or to withdraw their application. After this period, CIC formally notifies the spouse/partner of their dependants’ HIV-positive status and provides sponsors in the Family Class an additional 60 days to either pursue or withdraw their sponsorship.
In 2004, a monthly notification report of HIV positive migrants tested overseas and landed in Canada was also implemented after consultations with provincial and territorial public health authorities.
By the end of December 2009, 90% of the 4,280 migrants found HIV positive for the first time during the IME were deemed admissible on health grounds. Eighty-five percent of the migrants found HIV positive were migrants exempt from the determination of Excessive Demand. This is because these individuals immigrated as Refugees, Refugee Claimants, and in the Family Class.
The CIC website also contains the following chart which details the procedure for HIV screening.