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The Minister of Immigration, Refugees and Citizenship recently announced long-awaited changes to its application of the medical inadmissibility provision of the Immigration and Refugee Protection Act (IRPA) and related changes to Immigration, Refugees and Citizenship Canada (IRCC)’s medical inadmissibility policies.

Certain prospective immigrants are required to undergo medical admissibility exams. This includes applicants for permanent residency under most of the economic categories, some family sponsorship categories, and some humanitarian and compassionate grounds categories.

Political Pressure for Reform

Public pressure to review the regulatory provisions related to medical admissibility had been building, in part due to several high-profile cases that were reported in the media, including that of Felipe Montoya, a Toronto professor at York University whose application for permanent residency was denied because his son has Down syndrome.

Although this case garnered significant media attention, the Montoya family had no choice but to pursue a long appeals process and eventually move back to Costa Rica in June 2016.

They were finally granted relief from inadmissibility under Section 25.1 (1) of the IRPA, which allows the Minister to grant an exemption to applicable criteria under the IRPA “if it is justified by humanitarian and compassionate considerations, taking into account the best interests of a child directly affected.”

Committee Review

The House of Commons Standing Committee on Citizenship and Immigration undertook a study of the Federal Government’s policies and guidelines regarding medical inadmissibility of immigrants and issued a report in December 2017, recommending the repeal of section 38(1)(c) of the IRPA, which reads as follows:

Health grounds

38 (1) A foreign national is inadmissible on health grounds if their health condition

[…]

(c) might reasonably be expected to cause excessive demand on health or social services

Section 1 (1) of the Immigration and Refugee Protection Regulations defines the relevant terms as follows:

excessive demand means

(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 the most recent medical examination required under paragraph 16(2)(b) of the Act, 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

health services means 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 means 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.

IRCC commitments

Immigration Minister Ahmed Hussen’s announcement on April 16, 2018 indicates that the government will not repeal section 38(1)(c) in accordance with the Committee’s recommendations. However, the Minister did commit to two significant changes to the current medical inadmissibility criteria which may put many applicants or their dependents who were previously found to be medically inadmissible in a position to reapply and qualify for permanent residence:

  • The definition of “social services” in the IRPR will be amended such that special education, social and vocational rehabilitation services, and personal support services will be removed from consideration under the excessive demand policy.  As such, many individuals dealing with disabilities that require access to these services will no longer be medically inadmissible.
  • The threshold amount of medical costs considered to be “excessive demand” for the purpose of determining medical inadmissibility will now be tripled.  This means that many applicants who require higher medical costs will no longer be medically inadmissible.

Impact of the New Policy

The Minister has stated that he estimates the new rules will allow entry to about 75 per cent of the approximately 1,000 people (and families) rejected annually due to medical inadmissibility.

While the effects of the implementation of these policy changes have yet to be seen, it is likely that a significant number of people who would have previously been found to be medically inadmissible will no longer be in this category.

Takeaways

Applicants who were denied permanent residency due to a medical condition or disability, or to that of one of their dependents, should consult immigration counsel to determine if the changes to IRCC’s policy may render their application (or a subsequent application) admissible.

If you have any questions or would like further information regarding Canada’s medical inadmissibility policies, please contact Alexandra Hobson at Sultan Lawyers PC by telephone at 416-214-5111 or by email at ahobson@sultanlawyers.com.


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