Medical Inadmissibility - how not to derail your permanent residence to Canada
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by Rekha McNutt
There are two components to all permanent residence applications: (1) Eligibility (ie. do you meet program requirements) and (2) Admissibility (ie. is there a reason why you should be denied PR despite being eligible).
There are a grounds for inadmissibility, such as criminality, medical conditions, or misrepresentation. For today’s post, we will talk about medical inadmissibility.
This was prompted by IRCC’s latest post on the threshold amount for excess demand, which is presently $21,204.
There are two grounds on which someone could be found medically inadmissible:
You have a health condition which is likely to be a public safety or security risk; or
Your condition might reasonably be expected to cause excessive demand on health or social services
For the first, think highly contagious diseases (eg. Ebola). The second ground of medical inadmissibility is far more common.
“Excess Demand” is defined as:
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 5 consecutive years immediately following the most recent medical examination required under paragraph A16(2)(b) of the Immigration and Refugee Protection Act (IRPA), 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
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
An important distinction to be aware of is whether the allegation is that your medical condition will cause excess demand on health services or social services. Because healthcare is universal in Canada, and publicly funded, you cannot ‘opt out’ of public healthcare and offer to pay for your cost of care out-of-pocket (or privately) even if you can afford to do so. Social services on the other hand are largely covered by private insurance or paid for by the individual (think: occupational therapy, physiotherapy, private tutors for children with disabilities).
You may or may not be aware from the outset of an application whether a medical condition exists which could cause IRCC to allege excess demand. Often times, such conditions become apparent when the individual completes their medical exam as part of the PR process. Either way, IRCC will send that individual something called a “procedural fairness” letter which lays out exactly what health or social services the Officer believes the individual requires, and the cost of that care. This is the crucial point at which you must seek good legal advice as the response to this procedural fairness letter will dictate the ultimate outcome on your application.
In my experience, the procedural fairness letter often sets out the “worst case” scenario for that individual and provides associated costs. It is important not to assume that the allegations are accurate. The individual’s own doctor’s are best suited to provide a counter report to challenge any findings in the procedural fairness letter and provide revised costing for the condition. In a situation of excess demand on social services, a detailed plan must be submitted on how the costs will be paid for privately.
Even with a revised opinion on cost of care, the individual’s condition may still exceed the threshold amount for excess demand. Or, it may not be possible for someone to privately pay for social services needed. In such situations, we resort to arguments based on humanitarian and compassionate (“H&C”) grounds to allow the person to have PR despite the inadmissibility. Those are complex arguments to be made and involve a great deal of legal research as H&C decision are highly discretionary.
Admissibility issues, including medical inadmissibility, are very complex. Getting good legal advice at the earliest opportunity is crucial.