Medical Inadmissibility

December 2017

On November 7th, 2017, Norma Lee MacLeod, the host of CBC Maritime Noon, invited myself, along with York University professor Felipe Montoya, to discuss the medical inadmissibility provision in the Immigration Refugee Protection Act. I spent countless hours preparing, so that I would be ready for any question that might be posed.  In my research, I discovered that truth is stranger than fiction.

What is medical inadmissibility?

All foreign nationals applying to come to Canada as permanent residents, as well as their family members, must undergo a medical examination by a designated medical practitioner. The purpose of the medical exam is to determine whether the person seeking admission to Canada poses a danger to public health and safety, or has a health condition that will impose excessive demand on Canadian health and social services. Communicable diseases such as active tuberculosis, untreated syphilis and uncontrolled mental health conditions exclude individuals because they pose a danger to public health and safety.  Excessive demand is used as a catch-all provision, and causes individuals with HIV, Down Syndrome, Cerebral Palsy, and who are deaf or blind to be ineligible for immigration to Canada. This is because the government assumes that individuals with these conditions will place excessive demands on social services, such as special education and health services. 

Applicants are provided with the opportunity to submit a Mitigation Plan outlining how they will alleviate the burden on social and health services, either through personal financial means or the family’s willingness and ability to contribute time and resources to support the individual. Immigration officers are tasked with assessing the feasibility of the plan, and rendering a final decision on medical inadmissibility. This decision is subjective. It can also lead to catastrophic consequences, as all family members will be excluded if one individual is medically inadmissible.

Professor Felipe Montoya himself experienced the effect of the excessive demand provision when he filed a permanent residence application. The application was rejected because his son, Nicolas, has Down Syndrome. The immigration officer found Nicolas medically inadmissible and by extension, his family was also inadmissible to Canada. It was believed that Nicolas would place an excessive burden on Canadian social and health services. Felipe and his family had to leave Canada, but the Minister of Immigration intervened and overturned the decision based on humanitarian and compassionate grounds.  

Is the provision out of step with Canadian law and values?

Canada has had a ‘medical inadmissibility’ provision for as long as it has had immigration legislation. The 1869 Immigration Act classified people with disabilities as “the defective class”. This included "the deaf and dumb, the blind, the lunatic, the idiotic and the infirmed".

In 2001, the Canadian government introduced the current format of the excessive demand provision. Most individuals are shocked to learn that no court has found a violation of Section 15 of the Canadian Charter of Rights and Freedom. Section 15 guarantees “equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Courts have found that the exclusion of the individual does not arise from their disability, but from the excessive demand their condition places on services. Over the years, the provision has led to absurd results, which have outraged the Canadian public.

Several callers to Maritime Noon expressed anger at excluding individuals with disabilities from immigrating to Canada. One caller even went so far as to label the provision as smacking of eugenics. The government has been reluctant to address the issue for a number of reasons. One caller defended the provision, pointing out that the Canadian health care system is overburdened with many individuals experiencing delays in accessing health services. However, another caller pointed out Canada must assume some liability to continue attracting the best and the brightest. ‘We can’t just expect the gravy’, he said.

Excluding individuals with disabilities from immigrating to Canada ignores the positive contributions they will make once they are in Canada. For example, one caller on the show talked about how her Greek father who is blind, immigrated to Canada in the early 80’s. Her father helped draft the United Nations Convention on the Rights of the Disabled. Yet, under the current excessive demand provision, her father could have been excluded. As a few callers pointed out, technological advances have made it easier for individuals to cope with disabilities.

The medical inadmissibility provision can also be emotionally devastating for families as it conveys the attitude that individuals with disabilities are unworthy. A caller described how in 1947, her father received a job in the United States. All her family members needed to pass a medical check, but her brother failed the medical check because he had Down Syndrome. The caller and her family could not move to the U.S., despite having a job lined up. Their family was still feeling the emotional effects of that denial a half century later.  Both the caller and Professor Montoya described the Canadian provision as ‘mean’ and ‘hurtful’.

If you are feeling outraged and ready to march down to Parliament Hill with pitchforks, you will be relieved to know that on October 24th, 2017, the Standing Committee on Citizenship and Immigration began examining the medical inadmissibility provision. This examination arose out of the public’s outrage for cases like Professor Montoya’s, and Canada’s international obligations. In 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), promising to recognize that “all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law”. Under Article 35 of the Convention, Canada is obligated to submit a comprehensive report to the Committee on the Rights of Persons with Disabilities on the measures taken to comply with its obligations under the Convention. Canada submitted its first report in February 2014. The committee highlighted several issues, including the medical inadmissibility provision and its effect on individuals with disabilities. The government responded to the concern by stating that it is undertaking a review of the excessive demand provision.

The Standing Committee has held several hearings. On November 22nd, 2017 Minister Hussein appeared before the Committee and stated, "from a principled perspective, the current excessive demand provision policy simply does not align with our country's values of inclusion of person with disabilities in Canadian society". Minister Hussein rejected the proposition of providing a new training mechanism for officers to lead to a more consistent application of the provision.  He made it clear that the provision needs to be changed to be in line with the government’s accessibility agenda.

It is still unclear how the provision will be changed and whether the operation of the provision is suspended until the government decides on a course of action. Minister Hussein suggested that repealing the provision is an option amongst many other options. The goal is to balance between excessive costs and fairness & equity for immigration applicants. I am glad I will not be the one juggling this difficult balancing act!

The winds of change already seem to be in the air. On Tuesday, a Manitoba family learned that the denial of their application for permanent residency was being overturned; their disabled daughter would no longer be considered medically inadmissible.  

If you would like to listen to the show, please click here: http://www.cbc.ca/news/canada/nova-scotia/programs/maritimenoon/donkin-layoffs-immigrants-heath-sexist-cartoon-feedback-1.4391171

If you would like to learn more about medical inadmissibility in Canada, you can read this reference document prepared for the show:

https://drive.google.com/file/d/1ATRR_sgSAIi4XhiqxrJkfKTbxTLj-PpW/view?usp=sharing

You can read about the Standing Committee on Citizenship and Immigration’s work on this issue at these links:

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-78/evidence

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-85/evidence

http://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/meeting-86/evidence

Briefs submitted to the Committee can be read here:

http://www.ourcommons.ca/Committees/en/CIMM/StudyActivity?studyActivityId=9719668

An overview of the briefs can be found here:

https://globalnews.ca/news/3872320/advocates-demand-trudeau-end-unjust-immigration-law-call-it-a-black-eye-for-canada/

http://www.cbc.ca/news/politics/hussen-immigration-medical-disability-1.4414274

Ronalee in the Media

‘Impact on clients anticipated Bill to collect info at borders proceeds’, Law Times News, December 11, 2017:
https://drive.google.com/file/d/1DGDSuNj31fv8Dm4tV2K9GTAf4hKc2eF3/view?usp=sharing

‘The Private Sponsorship of Refugees to Canada – PART 2’, Canadian Immigration Podcast, November 27, 2017:
http://www.canadianimmigrationpodcast.com/the-private-sponsorship-of-refugees-to-canada-part-2/

‘Donkin Layoffs, Immigrants Health, Sexist Cartoon Feedback’, CBC News, November 7th, 2017:
http://www.cbc.ca/news/canada/nova-scotia/programs/maritimenoon/donkin-layoffs-immigrants-heath-sexist-cartoon-feedback-1.4391171

‘An issue that pulls at the heartstrings: MPs review rules that reject immigrants on medical grounds’, CBC News, October 24, 2017:
http://www.cbc.ca/news/politics/immigration-rules-medical-inadmissibility-1.4367826

‘Will the Dreamers come north?’, CBC News, September 6, 2017:
http://www.cbc.ca/news/canada/ottawa/programs/ottawamorning/will-the-dreamers-come-north-1.4276905

‘Dreamers’ unlikely to rush to claim asylum in Canada, immigration experts say’, National Post, September 6, 2017:
http://nationalpost.com/news/politics/dreamers-unlikely-to-rush-to-claim-asylum-in-canada-immigration-experts-say

‘Lawyers across Canada on stand-by to monitor Trump’s travel ban’, Toronto ‘The Star’, June 30, 2017:
https://www.thestar.com/news/gta/2017/06/30/lawyers-across-canada-on-stand-by-to-monitor-trumps-travel-ban.html

‘Refugee legacy cases’, CBC News, May 01, 2017:
http://www.cbc.ca/news/canada/ottawa/programs/ottawamorning/refugee-legacy-cases-1.4093170

Legacy Refugee Claimants, The Hour Long show, May 1, 2017, Interview

‘Legacy claimants’ hoping for long-awaited refugee hearings’, CBC News, May 1, 2017:
http://www.cbc.ca/news/canada/ottawa/ottawa-forgotten-refugee-new-task-force-1.4091221

‘Focus: Immigration chaos in U.S. masking Canadian problems’, Law Times News, March 20, 2017:
http://www.lawtimesnews.com/author/michael-mckiernan/focus-immigration-chaos-in-us-masking-canadian-problems-13211/

‘About that post-election exodus to Canada . . .’, Boston Globe, March 03, 2017:
https://www.bostonglobe.com/lifestyle/2017/03/02/about-that-post-election-exodus-canada/nXjwJNn2AxjoCLYU6xyU3M/story.html

‘Interviewing the Top Immigration Lawyers in Canada: SSH Law Podcast Series: Ottawa Immigration Lawyer Ronalee Carey’, Stewart Sharma Harsanyi Immigration, Family and Criminal Law (SSH Law) – Immigration Blog, January 08, 2017:
http://www.sshlaw.ca/interviewing-the-top-immigration-lawyers-in-canada-ssh-law-podcast-series-ottawa-immigration-lawyer-ronalee-carey/

‘The Private Sponsorship of Refugees to Canada – PART 1', Canadian Immigration Podcast:
http://www.canadianimmigrationpodcast.com/the-private-sponsorship-of-refugees-to-canada/

‘New Canadians know too little about indigenous peoples: Reis Pagtakhan’, CBC News, March 08, 2016:
http://www.cbc.ca/news/canada/manitoba/new-canadians-know-little-indigenous-1.3482694

‘Focus: Express Entry online system full of glitches, says lawyers’, Law Times News, March 07, 2016:
http://www.lawtimesnews.com/author/michael-mckiernan/focus-express-entry-online-system-full-of-glitches-say-lawyers-12501/

‘Canada’s hardest-hit economies need immigration to thrive again’, Canadian Business, February 16, 2016:
http://www.canadianbusiness.com/blogs-and-comment/canadas-hardest-hit-economies-need-immigration-to-thrive-again/

‘Citizenship revocation of Canadian-born terrorist could end in stalemate’, Yahoo! News, October 2, 2015:
https://ca.news.yahoo.com/blogs/dailybrew/citizenship-revocation-of-canadian-born-terrorist-200503022.html

‘Tips from an Immigration Lawyer: When Requiring “Canadian Experience” is a Violation of Human Rights’, Up-Date Magazine (Volume 12, Issue 1), March 2014:
https://drive.google.com/file/d/1cOmvpeTGk3eo9Iko_op4o-jRSPofGHWv/view?usp=sharing

‘New skilled trades immigration program accents only one-third of applications’, David McKie Journalism, March 09, 2014:
http://www.davidmckie.com/new-skilled-trades-immigration-program-accepts-only-one-third-of-applicants/

‘Tips from an Immigration Lawyer: Hiring Skilled Tradespeople Through the New Federal Skilled Trades Program’, Up-Date Magazine (Volume 11, Issue 4), November 2013:
https://drive.google.com/file/d/1IoEbENurN2sbNT45hOdYD7BNr-OnD4id/view?usp=sharing

‘The New Federal Skilled Trades Program – Will it solve labour shortages in the residential constructions industry?’, Home Builders Magazine – Canada, July 29, 2013:
http://www.homebuildercanada.com/2604_Skilled_Trades.htm

‘New Program could help the power industry find skilled workers’, APPrO Magazine, June 26, 3013:
https://drive.google.com/file/d/1ZHIYpGTK0qI0TP7ZApKZWDF11CymtmHV/view?usp=sharing

‘Tips from an Immigration Lawyer: Canada Changing the Way It Selects Skilled Immigrants – FOLLOW UP’, Up-Date Magazine (Volume 11, Issue 3), May 2013:
https://drive.google.com/file/d/1QGpyB5JS1281pOXessQ1vPlbmvBOFQdu/view?usp=sharing

‘Tips from an Immigration Lawyer: Canada Changing the Way It Selects Skilled Immigrants’, Up-Date Magazine (Volume 11, Issue 2), March 2013:
https://drive.google.com/file/d/1hKV4D0VseDyrHOm4KPhHprZ6FyF7I-4r/view?usp=sharing

Reduced Residency Requirements for Citizenship Applications Now in Effect

November 2017

On October 11th, 2017 immigration lawyers received an early Christmas present. The residency obligation required to apply for citizenship was reduced, making many of our clients eligible earlier than originally planned.  Previously, applicants must have been physically present in Canada for 4 out of 6 years before qualifying to apply for citizenship. Now, applicants must be physically present in Canada for 3 out of 5 years. Applicants can also get credited ½ days for time spent in Canada as temporary residents, up to a maximum of one year.  You can find out whether you meet the new residency requirement by using the physical presence calculator.

Another change is that only individuals between the ages of 18 and 54 must pass the language and knowledge requirements for citizenship. If you are over 54 years old, you do not have to practise your test taking skills.

Initially, the changes did not go smoothly. On the first day, immigration lawyers across Canada were thrown into a frenzied panic as none of the newly typed forms could be printed. IRCC was keeping us on our toes by testing our technological skills. The glitch was eventually fixed by IRCC.

Another problem also emerged. IRCC continues to play one of my favourite childhood games of ‘Spot What’s Missing’. The new Citizenship Document Checklist did not list the Permanent Resident card and Confirmation of Permanent Residence document as being required, when the Instruction Guide said to include them. IRCC has since amended their Instruction Guide.

Then, the application form for adults, CIT 0002 and the form for minors, CIT 0003 were re-released with updated formatting. Since the version date (found at the bottom left corner) of the forms were also 10-2017, the same as the version of the forms released on October 11th, there is no way of knowing if a form dated 10-2017 is the correct version, short of examining the formatting and comparing it to the earlier version.

It certainly was not the smooth roll-out the government was hoping for.

So, before you race to the post office to send in your application, you should be aware that IRCC is no longer accepting any of the old forms. If you do not use the version of the forms currently on the IRCC website, your application will be returned to you as ‘incomplete’. Ensure that you use the new forms when you submit your citizenship application.

If you are unsure about whether you qualify for citizenship or if you need help with the application, then please contact us and we would be happy to assist.

 

The difficulties in travelling AFTER becoming a permanent resident but BEFORE your permanent residence card arrives

October 2017

When I was taking legal ethics courses prior to becoming a lawyer, I was warned against giving ‘cocktail party advice.’ This is when legal advice is given in a social setting, without obtaining the required background information, and properly documenting the advice given.  The Law Society of Ontario frowns upon giving advice in these circumstances.

Well, it wasn’t a cocktail party, but rather a wedding reception. The individual had become a permanent resident just that week.  He was a Christian missionary, and had travel plans to the United States to report to the churches who were supporting the missionary work he was doing in Canada.  He was struggling with how to re-enter Canada after his meetings, as his permanent resident card wouldn’t be mailed to him for about two months.  He was telling me he had been researching how to apply for a Permanent Resident Travel Document (PRTD).  I couldn’t hold it in, ‘But you don’t need a Permanent Resident Travel Document’, I blurted out, ‘You are a US citizen.  You can just present your US passport and then get on the plane.’

Oops. I’d just given cocktail party advice.  Of course, I then had to explain why US citizens who are permanent residents do not need a PR card or PRTD to get on a plane to fly to Canada, even though there is absolutely no reference to this on the Canadian immigration website.  The short version is this:  US citizens do not need a visa or electronic travel authorization (eTA) to fly to Canada.  Airline staff are unaware of who is a permanent resident of Canada and who is not.  Upon arrival in Canada, alternate documentation can be presented to establish their permanent resident status to Canada Border Services Agency officials, including the signed Confirmation of Permanent Residence document. 

If he had not been a US citizen, entry into Canada would have been much more problematic. Most individuals need a visa or eTA to enter Canada.  Once you become a permanent resident, you are no longer a ‘visitor’ to Canada, and you cannot be issued a visa or eTA.  The airlines can only accept a permanent resident card or PRTD.  Short of flying into the US and driving to a land border (where alternate documentation can be presented to CBSA officials), flying into Canada before the permanent resident card is received is almost impossible.  PRTD applications must be made outside of Canada, and can take several weeks to process.  For someone travelling only for a week of meetings, this is not feasible. 

There is a very simple solution to this problem. Immigration could decide to make visas and eTAs valid for three months after permanent residency is confirmed, to allow time for the permanent resident card to be made then mailed to the individual.  (I am very hopeful someone from Immigration is reading this blog post!)

At the end of my conversation with the missionary, he thanked me, and told me that he and his wife had been praying for a solution to the problem which was created by not having his permanent resident card. Apparently, I was the answer to their prayers.  So, I would argue to the Law Society that it is okay to give cocktail party advice, so long as you're doing the Lord's work.

Residency Obligations for Permanent Residents

Next month I will be speaking at the Canadian Bar Association’s National Immigration Law Section Annual Conference. Being asked to speak is an honour, however it comes with the requirement to submit a paper.  Finding time to research and write was an issue – much of the paper was written between basketball games in the hallway of a high school in Markham, Ontario, where my son was playing in a weekend tournament.