July 20, 2016

Mistakes & Medical Inadmissibility: Top 5 Preventable Issues!

Our Toronto immigration lawyers and staff deal with medical inadmissibility cases at Bellissimo Law Group each and every day, outside and inside the courtroom.  It is a wonderful yet complex area of practice that allows for creative and effective advocacy.  However, we still see so many immigration cases that should not have resulted in a medical refusal. Leaving aside issues of under representation and the challenges of certain cases, here is my top 5 list of preventable medical refusals in no particular order:

1. The failure to request an extension where necessary to file fuller and more comprehensive submissions and supporting evidence. We see so many cases where a more detailed and responsive report as one example, could have spelled the difference. But instead, the rush to file resulted in a procedural fairness response that did not provide a complete picture of the applicants’ circumstances and resulted in a justifiable refusal.

2. Submissions and evidence do not address the legal timeline. For example, if the applicant has a medical specialist, a letter from this specialist must be obtained that speaks to the relevant 5-10 year period. Remember, the test is not a lifetime or conversely how the applicant is doing right now.  We see this so often where the focus is on the here and now and ignores the forward looking portion of the legal, medical and factual immigration analysis.

3. Failing to properly research and understand the interplay between federal and provincial delivery of health and social services and private versus public coverage respectively. The applicant must consult the appropriate province and understand the nuances of the public versus private scheme.  This exercise by far is one of the most complicated aspects of a medical inadmissibility immigration case and where most errors occur. Each province has its own plan of delivery for social service care as an example and what can be covered privately is a complex and cumbersome exercise.  Prescription drugs in (health service) versus out of hospital (social service), is an area of frequent confusion.  If the majority of the cost of the drugs is and could be covered privately, it would not be government-funded and so the cost would not be an “excessive demand” within the meaning of the IRPA.

4. Applying the right legal test. The legislative threshold is reasonable probability not remote possibility — all evidence and research must be analyzed in this context. It is not what could happen but what will likely happen to the applicant not any applicant with this condition, based on the applicant’s individualized circumstances.

5. Does the applicant know the case to be met? Again, so many applicants proceed to respond to unclear procedural fairness letters without fully understanding the immigration case to meet. Ensuring the procedural fairness letter properly qualifies the demand, distinguishes between health and social costs, and eligibility and actual need are critical points to address if not clear. Is the information being relied upon in the procedural fairness letter outdated or inapplicable because of the intended province of destination or eligibility issues?  Is the Medical Officer qualified to render that opinion?  Did the Medical Officer make the decision?  A number of probing questions have to be applied to the procedural fairness demand before a response is developed.

Thankfully a number of cases can still be saved at the Federal Court or Immigration Appeal Division despite missteps on the original response to the procedural fairness letter but certainly not all. Hiring a skilled and experienced immigration representative in this very complex area of immigration law is critical to ensure the fullest legal and factual arguments can be advanced.

For more information on Medical inadmissibility, please click here.

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