June 1, 2018

New Program Delivery Instructions Regarding Medical Inadmissibility – June 1st

Early this morning, the Temporary Public Policy Regarding Excessive Demand on Health and on Social Services (public policy) was released by Immigration, Refugees and Citizenship Canada. The change in law is made by the authority provided under section A25.2 of the Immigration and Refugee Protection Act. This public policy now effectively allows officers to exempt individuals who meet the specific eligibility criteria set out by the Minister from paragraph A38(1)(c) of the Immigration and Refugee Protection Act, which concerns an excessive demand for medical reasons.  Some of the eligibility provisions include:

1. The foreign national (principal applicant or their dependent family member) must have a temporary or permanent resident application that was received on or after April 16, 2018 or was pending as of that date, was sent back by the Court for redetermination on or after April 16, 2018, or was sent back by the Immigration Appeal Division for reconsideration on or after April 16, 2018; and
2. The costs of the health and social services (listed in Section 1, Annex B) that would be required to treat the foreign national’s health condition are less than three times the average Canadian per capita health 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 Immigration and Refugee Protection 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.

Applicants who are required to undergo an immigration medical examination (IME) pursuant to subsection 16(2)(b) of the Immigration and Refugee Protection Act and who are not exempt under subsection 30(1) of the Regulations will continue to be so required.

Pending application: For the purposes of this public policy, an application is considered to be pending up until it is either approved, refused, withdrawn or abandoned.

Section 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 2 of the Immigration and Refugee Protection Regulations defines what excessive demand, medical and social services are:

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.

The anticipated costs are measured against a threshold that provides for an average cost for Canadian and its residents. Interestingly, Immigration, Refugees and Citizenship Canada reduced the yearly threshold from $6,655 a year to $6,604, although tripled it to average$19,812 a year.

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.

Some of the defined health services have been amended slightly to exclude chiropractors and physiotherapists.

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.

Further, the defined social services to be considered no longer appears to include special education, although it remains to be known if therapy services (i.e.: speech therapy, occupational therapy, etc.) will continue to fall under the “other care provider” services now listed.

The other interesting aspect is the relationship between the Centralized Medical Accessibility Unit (CMAU) and the Humanitarian Migration and Integrity Division at the IRCC Niagara Falls office (HMID-NF).  The policy reads in part:

If, after weighing provisions of the public policy, the officer determines that the applicant (principal applicant or family member) is still reasonably expected to cause excessive demand, the officer should do both of the following:

• complete all application processing steps, including any outstanding admissibility or eligibility assessments, other than the assessment of medical admissibility and final decision
• transfer the application to the Humanitarian Migration and Integrity Division at the IRCC Niagara Falls office (HMID-NF) for continued processing and a final decision

This is a significant step for Immigration, Refugees and Citizenship Canada as these changes will help reducing social handicapping, discrimination and unlawful medical inadmissibility findings, although it also makes preparing in advance of medical examinations all the more important. The evolution of this policy to likely regulatory amendment and its application to different stages of immigration processing and litigation will be critical to its ultimate impact.