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Medical Inadmissibility

6/12/2018

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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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Legalization Of Cannabis - Impact On Your Ability To Travel

8/11/2018

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On October 17, 2018, the Cannabis Act and a number of supporting regulations and ministerial orders came into force, legalizing use of cannabis for recreational use. However, the Cannabis Act still strictly regulates the sale, possession and production of cannabis in Canada. It has also led to some interesting questions for users of legal cannabis: what impact will their use of cannabis have on their ability to travel to other countries.
While Canada has legalized cannabis this is not the case for our neighbour, the United States. Crossing the Canadian border with cannabis, either entering or leaving, is still illegal. Travelers crossing the border to the US have faced increasing levels of scruitiny in recent years and the legalization of cannabis in Canada will be adding a level of additional complexity for users of cannabis and anyone who works in the cannabis industry.

Below are some important points you should know if you plan to travel to the U.S. and use cannabis or work in the cannabis industry.


You may face a life time ban

Although the possession of cannabis is legal in some U.S. states, it remains illegal under U.S. federal laws in any form and quantity. According to the US Customs and Border Protection statement issued with regards to the legalization in cannabis in Canada: “any arriving alien (non-U.S. Citizen) who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the U.S.
If a Border officer determines that you are inadmissible you may be prevented from entering the U.S. and in some cases you may face a ban on being able to enter in the future.

You should not attempt to cross the Canada-U.S. border with any amount of cannabis in any form, even if you are travelling to a U.S. state that has legalized possession of cannabis. If you do so you can expect legal prosecution and fines, and possibly jail time.


Reciprocal Access to US and Canadian Criminal Records

US Border Officers have access to US and Canadian criminal records. If a Border Officer finds prior charges for cannabis or other drug or alcohol violations, this may make you inadmissible to the U.S., even if the charges did not result in a conviction. It is not possible to prevent the US Border officer from finding you inadmissible for a prior charge or conviction. However by answering all questions truthfully you can prevent the Officer from finding you permanently inadmissible for committing fraud and misrepresentation by denying that you have a prior charges.


Your Mobile Devices and Personal Belongings May Be Searched

You should be aware that Border Officers have the authority to search your personal belongings, including all mobile devices – they can even request your cellphone and laptop passwords to fully access the content of your mobile devices. Therefore any content such as photos, text messages or even emails may be interpreted by the Border Officer as evidence that you may have or intend to commit a criminal act, including cannabis use and therefore lead to finding you inadmissible to enter the U.S.

Your Online Data May Put You at Risk

So far, the purchase of cannabis in many provinces is only available and online and requires that you provide a great deal of personal information as part of the purchase transaction. Given the number of data breaches that companies and governments have faced in the past, there is a real risk that if you purchase cannabis legally your private information may later be accessed by unauthorized parties. Further, if your electronic information is stored in servers in the U.S. it is not covered by the protections of Canada's Privacy Policy and can be accessed by US authorities since the information belongs to a non-American individual.
Please note that these points are intended for general purposes and if you intend to travel to the U.S. you should obtain qualified legal advice to understand all the risks based on your individual circumstances. The consequences of breaching U.S. laws are grave and as explained above can lead to a permanent ban from entering the U.S. in the future. 

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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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    Authors: 
    Zeynab Ziaie 
    Zahra Ziaie 

    Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case. 

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