Ziaie Law: News

Medical Inadmissibility

6/12/2018

If you wish to immigrate to Canada, and in some cases if you are applying for a temporary visa, you must undergo a medical examination. The purpose of immigration medical examinations is to determine that you do not cause a danger to public health and that you do not have a medical condition that may be excessively costly to treat when you arrive in Canada.

Grounds for Medical Inadmissibility
Immigration medical examinations are carried out by designated physicians and Immigration, Refugee and Citizenship Canada (“IRCC”) has a list of physicians that can assist you in countries around the world. The medical examination is a standard physical exam and includes a series of tests (blood and urine) and x-rays. You will also be asked about your prior medical history and your mental state as part of the examination. The results of these examinations are extremely important as you may be found inadmissible to Canada if:
1) your condition would endanger the health or safety of the Canadian population at large, or
2) your condition may cause excessive demand on existing social or health services provided by the government.

An example of a medical condition that may make you inadmissible under the first category is Active Pulmonary Tuberculosis (TB). There are also other conditions that can make you inadmissible under this category such as suffering from a variety of brain disorders or applicants who have substance abuse issues that cause them to behave antisocially or in a violent manner, and other types of hostile and disruptive behaviour.

In the second category, you may be found inadmissible if your condition requires government–funded health services such as specialists, nurses, physiotherapists, laboratory services, medications or hospital care, as well as social services such as specialized residence or home care, social rehabilitative services, personal support services, and services intended to assist a person in their physical, emotional, social, psychological or vocational function. If the anticipated costs for these services are found to exceed the Canadian per capita health services and social services costs over a 5 to 10 year period, then the immigration officer may find you inadmissible due to excessive demand.

Recent Changes to Excessive Demand
Many believed that Canada's excessive demand rules were outdated and asked for recognition of the discriminatory nature of this provision on people with disabilities. The good news is that Canada increased the threshold for “excessive demand” significantly effective on 1 June 2018.

Under the old provisions, approximately 1,000 applicants are denied immigration to Canada each year because of medical inadmissibility, with at least a quarter of these being families that have children who require special education services that will cost more than the minimum threshold. This means hundreds of applicants are refused each year under the provision because they or their children have a health condition or disability that can be accommodated by Canadian society.

The new threshold for excessive demand is now $19,965 per year (based on 2017 figures) and no longer includes costs associated with special education, social and vocational rehabilitation services and personal support services that an applicant may need in Canada.

Can you overcome medical inadmissibility?
An immigration officer that is of the opinion you may be medically inadmissible will issue a “Procedural Fairness Letter” to you. This letter will provide you with an opportunity to respond to the allegation of medical inadmissibility within 60 days.

Medical inadmissibility cases are very complicated and many medical and even psychological conditions can lead to your immigration application being refused. It is very important to act quickly and receive legal advice as soon as possible. You are most likely to overcome medical inadmissibility if you can provide a response to the Procedural Fairness Letter that is fully researched and supported by specialized documents and legal arguments. If your application is refused due to medical inadmissibility a lawyer may also assist you in appealing the decision.

In some cases you can act proactively to increase your chances of avoiding medical inadmissibility. If you suspect that there may be medical concerns for yourself or any family member included in your application you can consult a specialized lawyer to determine the best way to proceed with your immigration application to avoid a finding of medical inadmissibility.

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Updating Canada's Medical Inadmissibility Policy & Increasing inclusiveness in Canadian Society

26/4/2018

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On 16 April 2018 the Minister of Immigration, Refugees and Citizenship announced an update to the policy regarding medical inadmissibility under Canada's Immigration and Refugee Protection Act. The changes that will come into effect on 1 June 2018 will enable more applicants for permanent residence to be approved even if they have a medical condition or disability that may have previously rendered them inadmissible to Canada because of “excessive demand” on the Canadian health care and social services system.

In November 2017 I wrote in depth about the requirement for all applicants for immigration to Canada to undergo medical examinations. Some classes of immigration such as spousal sponsorship or refugees are exempt from medical inadmissibility regulations. However, for many applicants, if the applicant or any accompanying family member has a medical condition that “may cause excessive demand on existing social or health services provided by the government” they can be found medically inadmissible. The threshold for “excessive” demand was set at $6,655 per year (based on 2017 figures), meaning if the officer determined that an applicant would require care and social services in excess of this amount they would be deemed medically inadmissible.

However, this approach has long been criticized as being out-of-date and out-of-touch with Canada's current approach to inclusion and disabilities. Annually approximately 1,000 applicants are denied immigration to Canada because of medical inadmissibility, with at least a quarter of these being families that have children who require special education services that will cost more than the minimum threshold. This means hundreds of applicants are refused each year under the provision because they or their children have a health condition or disability that can be accommodated by Canadian society.

The new policy that will be effective as of 1 June will make two important changes:
1- it will increase the minimum threshold considerably to $19,965 per year (based on 2017 figures), and
2- it will change in the definition of “social services” so as to remove references to special education, social and vocational rehabilitation services and personal support services that an applicant may need in Canada.

The aim of this new policy on medical inadmissibility is to better balance the need to protect publicly funded health and social services with Canada's commitment and views on the inclusion of all persons, including those with disabilities.

To make this policy a reality, the federal government is making important administrative changes including creating a centralized office to make decisions regarding medical inadmissibility, ensuring that information on procedures and requirements are presented in plain-language and that the decision makers and medical officers have updated training to support these changes.

The federal government has been reviewing medical inadmissibility since 2016. However these changes will likely not be the last development in this area. The Standing Committee on Citizenship and Immigration recommended the full elimination of the medical inadmissibility policy and the federal government is collaborating with the provinces and territories to make this recommendation a reality.

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Overcoming Criminal Inadmissibility

18/12/2017

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Last week I wrote about who may be criminally inadmissible to Canada. But are there any ways in which you may be able to overcome criminal inadmissibility? The good news is that the answer may be yes.

Depending on the crime, how long ago it was committed and how you have behaved since, you may still be allowed to come to Canada, if you:
1. convince an immigration officer that you meet the legal terms to be deemed rehabilitated,
2. apply for rehabilitation and are approved,
3. are granted a record suspension or pardon, or
4. apply for and obtain a Temporary Resident Permit.
Rehabilitation means that you are not likely to commit new crimes. Deemed rehabilitation means that enough time has passed since you were convicted such that your crime may no longer bar you from entering Canada. You may be deemed to be rehabilitated if your offence was a summary offence and at least 5 years has passed since the sentence was served, or it was an indictable offence punishable by a maximum imprisonment of less than 10 years, and at least 10 years has passed since you completed the sentence.

In other situations it may be more appropriate to submit a rehabilitation application to be allowed to enter Canada. In addition to meeting the eligibility criteria, you will have to show that you have rehabilitated, you are highly unlikely to take part in further crimes and at least 5 years has passed since the end of your criminal sentence and the day you committed the act that made you inadmissible.

The next option is to apply for a discharge or pardon. If your offence occurred in Canada and your charges have been withdrawn, dismissed, discharged (absolute or conditional), or pardoned under the Criminal Records Act, you are not considered criminally inadmissible. If you are able to obtain a pardon, it will permanently erase your Canadian criminal record, “and any consequences of inadmissibility resulting from it” within Canada. However, if your offence occurred outside of Canada, we will have to check to determine what impact the foreign record suspension or pardon will have on your admissibility.

Finally, you may be able to apply for a Temporary Resident Permit (“TRP”) that will allow you to enter or stay in Canada if it has been less than 5 years since the end of your sentence or you have valid reasons to be in Canada. In order to apply for a TRP, the need for you to enter or stay in Canada must outweigh any safety risks to Canadian society. You must be able to convince the immigration or border officer that your visit to Canada is justified. In assessing your application, the officer will look at various risk factors such as the seriousness of the offence, how much time has passed since the offence was committed, the chances of you committing further offences, evidence of rehabilitation, whether there are any outstanding charges and whether any controversy or risk is caused by allowing you into Canada.

Unfortunately there is no guarantee that a TRP will be issued and generally a permit is issued for a limited period of time for you to visit Canada for a specific purpose. In some cases it is possible for us to apply for authorization to leave and re-enter with a TRP, for example in the case of a frequent business traveller convicted of a minor offence.

Whether you are criminally inadmissible or have concerns that you may face a risk of criminal inadmissibility, you should consult an immigration lawyer to understand your options and make a plan to deal with the issue proactively. A lawyer can assist you in assessing your situation and preparing necessary applications for rehabilitation or TRP. And make sure to plan ahead – these types of applications can take over a year to process and you want to be sure ensure that you have the necessary permission to enter Canada before embarking on your travels.

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Understanding Inadmissibility: Criminal Inadmissibility

14/12/2017

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Why does Canada deem that certain individuals are “inadmissible” to enter the country? Canada's immigration laws and regulations must balance the nation's interest in permitting immigration to maximize social, cultural and economic benefits for Canada as a whole while at the same time protecting the health and safety of Canadian and ensuring the security of Canadian society. Last week I wrote about medical inadmissibility and individuals who may be prevented from entering Canada because they may endanger the health of other Canadians. In this article, I will outline who may be deemed criminally inadmissible: the group of people who may not be allowed to enter Canada because they have committed a crime or been convicted of a crime inside or outside of Canada.

Canada's immigration laws and regulations make it clear that a foreign national or permanent resident who is convicted of an offence under any act of Canada's parliament is deemed criminally inadmissible. The most common offences are found under the Criminal Code of Canada and the Controlled Drugs and Substances Act and include manslaughter, assault, theft, dangerous driving and driving under the influence of drugs or alcohol, and possession of or trafficking in drugs or controlled substances. However, it is possible that someone may be convicted of an offence under the Immigration and Refugee Protection Act (“IRPA”) of an offence such as possessing false documents in order to contravene IRPA or direct or indirect misrepresentation.

Compared to medical inadmissibility, it is important to note that criminal inadmissibility can apply to those who are already permanent residents of Canada. In some cases, IRPA authorizes the removal from Canada of permanent residents (as well as foreign nationals) that are deemed to be criminally inadmissible.

Who is criminally inadmissible?
In order to determine if you are criminally admissible we need to know what offence you were convicted of and where the conviction occurred. Except in cases of crimes against humanity, the activity you are convicted of must be a crime in both the place it was committed and in Canada. Interestingly, for offences outside of Canada a conviction is not necessary but for an offence in Canada you must have an actual conviction to be considered criminally inadmissible.

The seriousness of the crime that was committed and the consequences that follow your conviction determine if the crime you committed makes you inadmissible. In Canada the terms used to describe difference in severity of an offence are “Indictable” (more serious) and “Summary” (less serious) offences. Some offences are “Hybrid” offences where you may be prosecuted by indictment or summary conviction. A person is generally inadmissible if convicted of an offence in Canada, or elsewhere in the world, that would be at least a hybrid offence in Canada.

Immigration officers are charged with determining the equivalency of foreign conviction compared to Canadian laws, such as the Criminal Code. Based on this, the immigration officer will determine if the criminal conviction will render the applicant inadmissible. In many cases this determination is very difficult because the criminal laws of each country are different in terms of how they define the elements of the crime and the consequences of a conviction. In cases where the crime is more serious, such as murder, armed robbery or burglary, the decision to grant admission to Canada cannot be made by the immigration officer but must be referred to a Manager or Supervisor for determination.

Is there any way to overcome criminal inadmissibility?
In some cases, there may be a compelling reason for you to enter Canada for either employment or family issues despite having a criminal record. In some cases you may be able to overcome your criminal convictions and enter Canada, and in the case of permanent residents who are convicted of a crime, it may still be possible to overcome the criminal record and apply for citizenship. Next week I will write about rehabilitation and temporary resident permits that may allow a person with prior convictions to enter Canada.

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Medical Inadmissibility

3/12/2017

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your condition would endanger the health or safety of the Canadian population at large, or
your condition may cause excessive demand on existing social or health services provided by the government.

An example of a medical condition that may make you inadmissible under the first category is Active Pulmonary Tuberculosis (TB). There are also other conditions that can make you inadmissible under this category such as suffering from a variety of brain disorders or applicants who have substance abuse issues that cause them to behave antisocially or in a violent manner, and other types of hostile and disruptive behaviour.

In the second category, you may be found inadmissible if your condition requires government–funded health services such as specialists, nurses, physiotherapists, laboratory services, medications or hospital care, as well as social services such as specialized residence or home care, social rehabilitative services, personal support services, and services intended to assist a person in their physical, emotional, social, psychological or vocational function. If the anticipated costs for these services are found to exceed the Canadian per capita health services and social services costs over a 5 to 10 year period, then the immigration officer may find you inadmissible due to excessive demand.

Can you overcome medical inadmissibility?
An immigration officer that is of the opinion you may be medically inadmissible will issue a “Procedural Fairness Letter” to you. This letter will provide you with an opportunity to respond to the allegation of medical inadmissibility within 60 days.

Medical inadmissibility cases are very complicated and many medical and even psychological conditions can lead to your immigration application being refused. It is very important to act quickly and receive legal advice as soon as possible. You are most likely to overcome medical inadmissibility if you can provide a response to the Procedural Fairness Letter that is fully researched and supported by specialized documents and legal arguments. If your application is refused due to medical inadmissibility a lawyer may also assist you in appealing the decision.

In some cases you can act proactively to increase your chances of avoiding medical inadmissibility. If you suspect that there may be medical concerns for yourself or any family member included in your application you can consult a specialized lawyer to determine the best way to proceed with your immigration application to avoid a finding of medical inadmissibility.

Potential Changes Coming to Medical Inadmissibility
One of the only exceptions to the strict requirements for medical admissibility has been the case of applicants under the family sponsorship category. These applicants are not subject to the excessive demand component of medical inadmissibility. However, the Minister of Citizenship and Immigration, Ahmed Hussen, appeared before the Standing Committee on Citizenship and Immigration on 22 November 2017 and stated that the “excessive demand” provisions for medical inadmissibility are out-dated and need to be changed.

These discussions about the need to change this part of medical inadmissibility are fuelled by a recognition of the discriminatory nature of this provision on people with disabilities. There are a number of proposals for updating this provision to better reflect Canada's view towards people with disabilities and implement legislation and policies that can increase inclusiveness in our society. We will need to wait to see recommendations of the Committee and whether these will be adopted into new law to change medical inadmissibility in the future.

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Understanding Inadmissibility: Who is inadmissible for immigration purposes?

24/11/2017

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Immigration laws and regulations determine the requirements to enter and the process for applying for temporary and permanent visas. They also set out the class of applicants who are not allowed to enter Canada even if they otherwise qualify as a permanent immigrant or temporary worker, student or visitor. These are people who are deemed “inadmissible” under Canada's immigration laws and are not normally allowed to enter Canada.

What is inadmissibility?
You may be found to be inadmissible to Canada for a number of reasons. The top 5 reasons that you may be inadmissible are:

Medical inadmissibility: you have a serious health problem
Criminal inadmissibility: you have been convicted of a crime, or you have committed an act outside Canada that would be a crime
Security inadmissibility: you are a security risk, have committed human or international rights violations, have ties to organized crime
Financial inadmissibility: you have a serious financial problem
Misrepresentation inadmissibility: you lied in your application or in an interview

You may also be found to be inadmissible if one of your family members in your application is inadmissible for any of the above reasons.

How to know if you are inadmissible?
Whether you are inadmissible depends on your specific circumstances, but the place to start is to ask yourself if have you might fall under any of these categories:

Have you been convicted of a criminal offence, inside or outside Canada?
Do you have a medical condition that requires significant medical treatment?
Do you have sufficient financial resources to support yourself (and in some cases your family members)?
Have you lied or misrepresented information to the Government of Canada?

If the answer to any of these questions is yes, you may be inadmissible. The facts of your case will be different from that of any one else and you should be careful not to make a decision based on the experience of your family and friends. You should consult a lawyer to determine if you have an actual or potential inadmissibility and what the best course of action is to deal with the inadmissibility.

Can you overcome inadmissibility to Canada?
As part of the process of being assessed for entry to Canada, either for permanent (immigrant) or temporary entry (tourist, student or worker), all applicants have to satisfy the officer that they are not inadmissible and should be allowed into the country. The implication of being found inadmissible is that you will normally not be allowed to enter Canada. However, it is sometimes possible to overcome inadmissibility either by demonstrating that you have become rehabilitated or that appropriate time has passed since the event that made you inadmissible. In some circumstances you may have a valid reason to travel to Canada, in which case you may apply for a Temporary Resident Permit. In other, more complicated cases you may be have recourse by turning to the Immigration and Refugee Board or the Federal Court.

In the coming weeks I will be writing about the different types of inadmissibility and options you may have to overcome them and be allowed to enter Canada.

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NEWS

Medical Inadmissibility

Updating Canada's Medical Inadmissibility Policy & Increasing inclusiveness in Canadian Society

Overcoming Criminal Inadmissibility

Understanding Inadmissibility: Criminal Inadmissibility

Medical Inadmissibility

Understanding Inadmissibility: Who is inadmissible for immigration purposes?

Authors:
Zeynab Ziaie
Zahra Ziaie

Archives

Categories

NEWS

Medical Inadmissibility

Updating Canada's Medical Inadmissibility Policy & Increasing inclusiveness in Canadian Society

Overcoming Criminal Inadmissibility

Understanding Inadmissibility: Criminal Inadmissibility

Medical Inadmissibility

Understanding Inadmissibility: Who is inadmissible for immigration purposes?

Authors: Zeynab Ziaie Zahra Ziaie

Archives

Categories

Authors:
Zeynab Ziaie
Zahra Ziaie