March 21, 2022
Important Amendments to Regulations Governing Medical Inadmissibility – Learn More as the Conversation Continues . . .
In April 2021, members of our senior legal team had the opportunity to submit representations to Immigration, Refugees and Citizenship Canada (IRCC) regarding proposed amendments to medical inadmissibility regulations. Mr. Mario Bellissimo, Keely Anderson, and I wrote to the Acting Director of the Migration Health Policy and Partner Division of IRCC to commend them on their efforts to improve the decision-making process on cases involving potential medical concerns. We also made several recommendations to assist in these efforts.
IRCC officially announced the regulatory amendments that would be introduced on 4 March 2022 via the Canada Gazette.[1] From this release we learned that IRCC had accepted and implemented many of our recommendations. For example, we stressed that it was crucial that IRCC clarify the intent and purpose of any proposed regulatory changes. IRCC specifically clarified in the Gazette release that program delivery instructions would be provided concurrently with the regulatory amendments and that these instructions would thoroughly explain any definitions and terminology, thereby meeting our recommendations. Additionally, our proposal that the former ten-year-time period to assess excessive demand be repealed for greater certainty and fairness, and that a five-year time period should be universally applied, was fully implemented.
We commend IRCC on their diligent work to streamline the medical inadmissibility decision-making process. We also continue to promote the necessity of those recommendations in our submission that were not adopted. We have highlighted these recommendations for IRCC again. in a letter dated 21 March 2022. For example, our recommendations with respect to preserving the role of medical and immigration officers was not fully accepted.
In our most recent communication to IRCC we highlighted that the language of what constitutes medical factors is helpful but that we cannot fully envision how this division between medical and non-medical factors would be applied to lawful assessments. We recognized IRCC’s concern that consideration of certain factors by both officers can cause delays, is resource intensive, and leads to duplication of efforts. While we noted that we are heartened by the language in the Gazettethat it is a priority to ensure that the division of roles is clear, to the benefit of applicants, we also explained that these changes are critical to preserving lawful individualized assessments in excessive demand cases. We stressed again that we want to avoid questions of what is truly medical versus non-medical dominating the legal landscape like it has previously.
We thus asked IRCC for clear examples of what medical and immigration officers should consider moving forward. We are sure that no party wants to resurrect the issues that resulted in generic assessments and previously spurred litigation. We look forward to the program delivery instructions and operational bulletins to be released in combination with the regulatory amendments, which may address some of these critical concerns.[2]
Finally, we also continued to express concern regarding IRCC’s representation of counsel on their various webpages. We recognize that these recommendations are not regulatory in scope. We believe though that presentation of a balanced view of the critical role of counsel on IRCC websites will contribute to IRCC’s ongoing efforts to streamline the decision-making process on medical cases; promoting migrant access to counsel while ensuring the submission of well-developed and effective mitigation plans, thereby supporting a more expeditious decision.
Our medical inadmissibility page will soon be update to reflect the new amendments and Mr. Bellissimo will be writing a blog on some of the legal implications resulting from the new regulatory landscape. In all, some positive developments with more work to do. The conversation continues.