Operational Bulletin 037 –
September 7, 2007

Assessing excessive demand on social services for business class applicants

Background

In light of the Supreme Court decision in Hilewitz v. M.C.I.  and de Jong v. M.C.I.  (both business class applicants), officers must evaluate all submissions made by business class applicants with respect to their intention and ability to attenuate the burden on publicly funded social services, before finding these persons or their dependants medically inadmissible for excessive demand on social services (EDSS).

In Hilewitz and de Jong, the Supreme Court determined that all applicants are entitled to an individualized assessment of the likely demand their disability or impairment might place on social services. With respect to health services, the current practice appears to provide the requisite individualized assessment. However, in light of the fact that there is a private market for some social services and that some social services are means-tested, an individualized assessment for social services must include the likelihood of the business class applicants accessing those services. One must also consider the intentions and ability of these applicants to provide the required social services without availing themselves of publicly funded social services.

When assessing whether an individual is likely to create a cost-based excessive demand, the medical officer will compare the costs of anticipated health or social services for that individual against the average Canadian per capita health and social services costs.

The cost threshold is determined by multiplying the average Canadian per capita health and social services costs by the number of years used for the medical assessment window of the individual applicant (Regulatory Impact Analysis Statement – Section V, Vol. 136, June 14, 2002).

The definitions of “excessive demand” and “social services” are found in subsection 1(1) of the Immigration and Refugee Protection Regulations. The other sections of the Act and Regulations that apply are A16(2)(b), A38(1)(c), A42, R20 and R34.

Particular care should be paid to the definition of social services. As stated in the Regulations, “social services” are defined as any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services:

1. that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and
2. for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly funded agencies.

For additional information on the decision, please see the summary available in Annex 1. The decision itself can be found at: http://scc.lexum.umontreal.ca/en/2005/
2005scc57/2005scc57.html

Given the changing nature of public services and excessive demand, officers may want to consult recent jurisprudence and should not hesitate to contact headquarters if they need assistance.

Decision Making

Currently, these procedures apply only to applications made under the business class (entrepreneur, investor or self-employed), where the inadmissibility of the applicant, or the applicant’s family member, arises from the anticipated excessive demand on social services.

Applicants in this category will be given the opportunity to establish that they have both the ability and intention to use an alternative delivery method for one or several of the social services required by the affected individual so as to offset the excessive demand on social services. They will be invited to submit a Declaration of Ability and Intent to this effect.

Identified social service needs for the affected individual may be met using various alternative methods, either through family support, community support, or by purchasing private-sector social services. If the intent is to purchase private-sector social services, applicants will have to demonstrate that they have the intention and financial ability to defray the related costs and that this defrayment is practicable at their intended destination in Canada. If they intend to receive non-financial assistance from a family member, other individual or organization, they will have to demonstrate that this anticipated assistance is credible and meets the real needs of the individual. In addition, the quality of the planned services will have to be comparable to that of services in the public system in the province/territory of destination. Applicants will therefore need to demonstrate that the individuals and/or agencies providing these services have the appropriate qualifications and experience.

In the case of applicants providing a Declaration of Ability and Intent as well as supporting documentation, the medical officer will complete a review of the medical opinion on the excessive demand. As in all reviews regarding procedural fairness, the medical officer will review the client’s submission, paying specific attention to material relevant to the medical opinion. The officer will take into consideration a variety of factors, including the following: the availability of the planned alternative, the practicability and the quality of the service delivery method and, where applicable, the funding of the organization delivering the service (is it funded to such an extent as to fall within the definition of social services?).

If, based on the proposed plan, the applicant (or family member) would no longer present an excessive demand, the medical officer will then enter a conditional admissibility opinion code and will update the narrative. In these cases, the immigration officer will have to assess the likelihood of the plan being implemented in the province/territory of destination. The immigration officer will evaluate the applicant’s intent and ability to offset the excessive demand on Canadian social services and make a decision on the inadmissibility.

A step-by-step breakdown of the assessment process follows. A flow chart describing the assessment process is also included in Annex 2. As a reminder, all steps in the evaluation must be documented in the Computer Assisted Immigration Processing System (CAIPS), including all communications with the applicant, the applicant’s representative and the medical section. Immigration and medical officers should work closely together. The applicant’s declaration regarding excessive demand, submitted in response to the procedural fairness letter, must be retained on the immigration file, as well as all documents and information in support of the declaration. Copies of these documents must be sent to the medical officer for review on receipt.

For non-business class cases, where the ability to attenuate the burden on publicly funded social services is not relevant, the regular procedures should be followed. Section 13 of OP 15 provides guidelines on the medical refusal process, including information on the procedural fairness mechanism. As a reminder, before entering a medical admissibility decision, immigration officers should always review the medical opinion along with the material received from the applicant, and record the review process in CAIPS.

Procedures

1. If the medical officer is of the opinion that the health condition of a business class applicant, or the applicant’s family member, might reasonably be expected to cause an excessive demand on social services, the officer itemizes the social services needs for that individual in Canada with an indication of the cost implication of these services.
2. Upon receipt of this opinion, the immigration officer sends out the EDSS procedural fairness letter Annex 3 and a Declaration of Ability and Intent Annex 4. The letter invites the applicant to complete and submit the Declaration of Ability and Intent unless the applicant chooses to submit additional information to challenge the medical opinion of the health condition.

   Applicants choosing to submit additional information to challenge the medical opinion, may delay the submission of their Declaration of Ability and Intent until an officer has reviewed the additional information challenging the medical opinion.

   Note:

   • If, after a review of the additional information submitted by the applicant, the medical opinion remains the same, a letter Annex 5 is sent to the applicant to advise them accordingly and invite them to complete and submit the Declaration of Ability and Intent Annex 4 within 60 days.
   • If, after a review of the additional information submitted by the applicant, the medical opinion is changed and the applicant is no longer determined to be inadmissible, the applicant is notified accordingly and the file proceeds to finalization as per standard procedures.
   • Applicants who agree with the medical opinion of the health condition stated in the procedural fairness letter are invited to complete and submit, within 60 days, a Declaration of Ability and Intent to offset excessive demand on social services. This declaration also describes how to prepare the related submission.
   • For applicants who contact the office prior to the expiry of the given timeframe to indicate that they intend to make submissions but require additional time to gather all the required information, the immigration officer should review the request and consider granting an extension if appropriate.
   • If no response is received within the given timeframe, the file may be finalized based on available information, i.e., the applicant will not have proven to the immigration officer that they are able and intend to defray the excess cost of social services, and a medical inadmissibility decision will be rendered.
3. Upon receipt of the applicant’s Declaration of Ability and Intent, the immigration officer sends a copy of the complete submission to the medical officer for review of the inadmissibility opinion. The medical officer acknowledges receipt. Confirmations of receipt are kept on both the immigration and medical files.
4. When reviewing material submitted by applicants, medical officers are responsible for determining whether the affected individuals would still cause excessive demand on social services if they were to follow the outlined plan to meet their social service needs. In doing so, the medical officers use their medical expertise and knowledge of the Canadian health and social services sector. They review the alternatives proposed by the client, keeping in mind availability, quality, practicability and funding of the proposed alternatives. In reviewing applicants’ proposed alternatives, medical officers will generally not address the issue of ability and intent, but may direct questions to the visa officers if there are issues that could affect their assessment.

   If medical officers are of the opinion that applicants would no longer cause excessive demand based on the proposed plan, they will enter an M3 coding with wording in the narrative indicating that it is a conditional opinion. This M3 assessment will stand only if, after review, the immigration officer is satisfied, on a balance of probabilities, that the applicant has the ability and intent to proceed with the proposed plan. Thus, the medical officer’s M3 conditional assessment could result in a positive or negative medical inadmissibility decision by the immigration officer.

5. The immigration officer reviews the medical opinion and records the process in CAIPS. If the immigration officer believes that the medical opinion is unreasonable, incomplete or based on insufficient information, the officer should seek clarification from the medical officer.
6. For cases where the EDSS medical opinion is maintained (outlined plan does not propose satisfactory alternative), the immigration officer may send a standard medical inadmissibility refusal letter to the applicant.
7. For cases where the medical officer has formed the opinion that the proposed plan, if followed as indicated, would offset the excessive demand on social services, the immigration officer reviews the medical opinion in conjunction with the applicant’s Declaration of Ability and Intent, the supporting documents and any other relevant file information, and determines, on a balance of probabilities, whether the applicant will follow through on the commitment made, i.e., the likelihood of compliance on the part of the principal applicant to use the outlined alternative services.

To assist the immigration officer, the medical officer may have questioned the viability of the plan as part of the medical opinion. It is the responsibility of the immigration officer to decide whether the questions are of concern or not. In order to assess the applicant’s ability and intent, the immigration officer may want to gather additional information from the applicant by way of a letter or an interview. The immigration officer may consider a variety of factors, including the following:

• If expenses must be incurred, considering the full period covered by the medical opinion, is it likely that the applicant will have the financial ability to cover these expenses? Would the applicant still meet the investor, entrepreneur, self-employed definition without this money?
• If the applicant intends to receive support from a family member, other individual or an organization, how credible is it that this person/organization will provide free or cost-reduced assistance for the period of time assessed? How legitimate is this offer of assistance? Has the individual/organization done this in the past? Can the qualifications and experience of the individual/organization be confirmed?
• Where is the applicant at in terms of planning? Has the applicant already made all the arrangements for the services to be delivered upon arrival? How serious does this person appear to be with regard to this plan?
• Has the applicant relied on publicly funded services in the past? Are publicly funded services available in the country where the applicant resides?
• If the immigration officer is satisfied that the applicant, or applicant’s family member, will not cause excessive demand on social services, the officer enters a positive medical admissibility decision and the case proceeds towards finalization as per standard procedures. The Declaration of Ability and Intent is retained on file, and detailed CAIPS case notes are made.
• If the immigration officer is not satisfied, the officer does a standard medical inadmissibility refusal. Again, detailed CAIPS case notes must be made.

Coding

To follow.

Questions

Questions about this Operational Bulletin and requests for assistance or guidance should be sent to OMC-Immigration@cic.gc.ca.