Immigration: Supreme Court Ruling on Medical Admissibility to Canada
By Guidy Mamann, LL.B.
Canada's universal public health system has attracted international attention and praise and is one of Canada's proudest domestic policies.
Essentially, this system requires each province to maintain its own health care network and to issue health care identification cards to its residents. Residents can access, without charge, most diagnostic or preventative services and routine or emergency medical attention by simply presenting their health card to a private physician or hospital.
This system is designed to ensure that all Canadian citizens, regardless of their financial circumstances, have the same access to quality medical services.
While foreigners may have many reasons to choose Canada as a migration destination, its free health care system is no doubt a powerful draw.
In order to ensure that the system is not overly burdened, all new immigrants to Canada are subject to medical screening prior to being selected for permanent residence.
The Immigration and Refugee Protection Act ("IRPA") renders a foreign national inadmissible to Canada on health grounds if he/she is likely to be a danger to public health or safety or if they might reasonably be expected to cause excessive demand on Canada's health or social services.
All foreign nationals applying under the skilled worker, investor, entrepreneur, or self-employed categories must meet this standard. If the spouse, partner or child of a person applying in one of these categories is determined to be inadmissible on health grounds, his/her application will be refused. The parents of Canadian citizens or permanent residents who are being sponsored to Canada must also comply with these requirements.
Spouses, common-law partners and children who are being sponsored by Canadian citizens or permanent resident are inadmissible if they pose a threat to public health or safety. However, because of the importance given to family reunification in IRPA, they are not in admissible to Canada even if they might cause an excessive demand on Canada's health or social services. The same goes for those who meet the definition of Convention refugee (or a person in similar circumstances) and protected persons.
Obviously, refusing the application for permanent residence of an otherwise desirable and qualified immigrant on the sole basis that he or she has a child who is suffering from a medical condition is not without controversy.
Many intending immigrants have tried to immigrate to Canada with a child who does not pose a threat to public health or safety but who has a condition (i.e. downs syndrome) which might cause them to access Canada's health or social services. Some applicants have offered to sign guarantees that they would not to access these services if granted admission to Canada. Others have offered to create a trust fund for the child. Others have offered proof that they have never accessed such services in their own country and are, therefore, unlikely to access those services in Canada. Canada's immigration department has always been cool to these advances and has routinely refused such cases.
Last fall, two such cases reached the Supreme Court of Canada.
The first involved David Hilewitz, a South African businessman who tried to immigrate to Canada as an investor. He had a teenaged son, Gavin, who lived with "development delay". The Hilewitz family always looked after Gavin themselves and never looked to the state for assistance.
The second involved a Dutch dairy farmer, Dirk Cornelis Jan de Jong. He applied for permanent residence under Canada's self-employed category and wanted to purchase a farm in Ontario. His 9 year-old daughter Dirkje was diagnosed as being "intellectually disabled". The de Jong family was also prepared to look after their daughter on their own.
Both families had the financial resources to look after their children and a proven track record of doing so. However, since there is no legal mechanism which allows a prospective permanent resident to "opt-out" of their future entitlement to Canada's health and social services, both applications were refused as there could be no guarantee that once in Canada they would not, in fact, access those very services.
The Supreme Court heard the appeals of these two families and ruled in October 2005 that it was incongruous to select immigrants on the basis of their financial resources but then to ignore those very resources for this purpose. The Court rejected an approach "that impedes entry for all persons who are intellectually disabled, regardless of family support or assistance". It also rejected the immigration departments "cookie cutter methodology" and categorical exclusion of such families preferring an individual assessment of each applicant's specific likelihood of accessing the services in question.
The Supreme Court ruling has finally lain to rest a long and painful controversy surrounding Canada's medical selection standards for prospective immigrants.
However, the ruling should not be viewed as a categorical inclusion of children who have medical conditions. It simply means that families in similar circumstances will not be automatically refused on health grounds and that the immigration department will now be required to consider all relevant evidence relating to the applicants' intent and ability to look after their children without "excessive" assistance from the government if allowed to enter Canada as permanent residents.