Denied Entry to Canada - Health Concerns

Canadian immigration aims to facilitate entry into Canada for persons who meet the requirements set out in the Immigration and Refugee Protection Act (IRPA). Even if a person meets all eligibility requirements, they may still be refused if the Canadian Border Security Agency (CBSA) considers them to be inadmissible to Canada. This is best summed up by the principle enounced in Canada (Minister of Employment and Immigration) v Chiarelli that "non-citizens do not have an unqualified right to enter or remain in [Canada]." In this blog, we'll review reasons why someone may be considered inadmissible to Canada.

There are 10 general grounds of inadmissibility which can be found in sections 34 to 42 of the IRPA:

1. Security

2. Human Rights Violations

3. Criminality

4. Organized Criminality

5. Health

6. Financial Reasons

7. Misrepresentation

8. Cessation of Refugee Protection

9. Non-Compliance with the IRPA

10. Inadmissible family member.

Today let's look at reason number 5: Health Concerns

Denied Entry to Canada: Health

Section 38 of the Immigration and Refugee Protection Act explains the criteria for being found inadmissible to Canada due to Health:

Health grounds

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

(a) is likely to be a danger to public health;

(b) is likely to be a danger to public safety; or

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

Exception

(2) Paragraph (1)(c) does not apply in the case of a foreign national who

(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;

(b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;

(c) is a protected person; or

(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).

How is Medical Inadmissibility determined?

Every individual applying for permanent residence, and some individuals applying for visitor visas, study permits and other forms of temporary residence in Canada are required to undergo a medical examination by an approved physician to determine entry into Canada. This medical examination, at the applicant's own expense, can include a standard physical exam, x-rays, a review of prior medical records, and mental health assessment. Foreign nationals who apply to come to Canada cannot be found to be inadmissible on the basis of excessive demand on health or social services.

There are 3 possible reasons for Medical Inadmissibility:

1. Danger to public health

2. Danger to public safety

3. Excessive demand on health or social services

What does it mean to be a danger to public health?

An individual can be determined to be inadmissible to Canada if, after a medical examination, they are found to 'likely' be a danger to public health. Active Pulmonary Tuberculosis (TB), untreated Syphilis, and other communicable diseases are considered to be a danger to public health and therefore inadmissible to Canada. Although HIV is not considered a danger to public health, individuals with HIV must take appropriate steps to mitigate the public health risk and IRCC may require further information from an applicant with HIV.

What does it mean if my health condition is "a danger to public safety"?

If your health condition is deemed to be a danger to public safety if it is a "serious uncontrolled and/or uncontrollable mental health problem." Some examples include:

• Impulsive sociopathic behaviour disorders

• Pedophilia

• Substance abuse leading to violence or impaired driving

How is an "excessive demand on health or social services" calculated?

Section 1 of the Immigration Refugee Protection Act, Regulations, defines an excessive demand for health or social services as a health condition where the anticipated costs would likely exceed that of the average Canadian and increase waiting times or rate of mortality for Canadians.

Immigration officers must determine the cost required to care for a foreign national over a five-year period. This needs only be an estimate and the Courts have ruled that the immigration officer does not need to provide an exact amount. It is the applicant's responsibility to disprove these claims and allay the concerns of the immigration officer regarding possible health costs that they may incur while in Canada.

The ability of each applicant to mitigate the cost to Canadian health or social services is considered on a case-by-case basis. However, simply having the financial resources to support yourself and pay for any required health or social services is not enough. The Courts have made distinctions between the ability to pay for social services and the ability to pay for health services -- the latter having a higher bar to pass.

What to do if found medically inadmissible?

If you are found to be medically inadmissible for one of the above reasons or you are worried about being inadmissible due to a health condition, there are ways to assuage the concerns of the officer. You can provide information from a health practitioner about the health condition in question and the steps taken to mitigate any risk or confirm that the disease has a low chance of transmissibility. You can present evidence to show that you have the funds required to pay for any additional health services you may require while in Canada. An applicant can also put forward a proposal as to how they will mitigate the costs on Canadian health services.

Applicants are responsible for ensuring that they present all necessary information at the time of application. Although each analysis is meant to be individualized, the Federal Court of Canada has affirmed that the use of research or statistical information is relevant in the assessment of the Immigration Officer. This is while it is important to ensure that your application is as complete and thorough as possible to minimize the chances of your application being refused due to medical inadmissibility.

If you fear that you may be found medically inadmissible to Canada, or you have been advised by IRCC that you are medically inadmissible, book your consultation to determine your next steps and how I can help you with your application.