Excessive demand on health and social services

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

As part of the review process, immigration officers determine whether an individual is likely to place excessive demand on health and social services.

Section 1 of the Immigration and Refugee Protection Regulations (IRPR) defines “excessive demand” as

  • a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Immigration and Refugee Protection Act (IRPA), unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or
  • a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents.

Definitions

For all cases of excessive demand on health services other than for outpatient medication, the procedural fairness process is the same as for danger to public health and safety (since the ability and the intention to defray costs are not relevant factors).

Excessive demand on health services

Section R1 defines “health services” as any health services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.

The case law has developed separate requirements for excessive demand on health services and excessive demand on social services. Since most health services are publicly funded, without any cost-recovery mechanism, the courts have held that an applicant’s willingness or ability to pay is not a relevant factor. In Deol v. Canada (M.C.I.), 2002 FCA 271, the Federal Court of Appeal said:

“The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces or promises to reimburse the costs of any services required.”

However, in Companioni v. Canada (M.C.I.), 2009 FC 1315 and later cases, the Federal Court allowed some flexibility in assessing the applicant’s ability to defray the costs of outpatient medication, such as HIV antiretroviral therapy. Therefore, medical officers have to make an individualized assessment of the medical file, the required outpatient medication, the availability of private insurance and the ability to opt out of publicly funded drug plans in the province or territory where the applicant intends to reside.

Excessive demand on social services

Section R1 defines “social services” 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.

In light of the Supreme Court decision in Hilewitz v. Canada (M.C.I.), De Jong v. Canada (M.C.I.) 2005 SCC 57, and subsequently the Federal Court of Appeal decision in Colaco v. Canada (M.C.I.), 2007 FCA 282, Immigration, Refugees and Citizenship Canada (IRCC) officers must consider all evidence presented by an applicant before making a decision of inadmissibility due to excessive demand on social services. The judgments apply to all categories of immigrants.

In Hilewitz and De Jong, the Supreme Court determined that all applicants are entitled to an assessment of the probable demand their disability or impairment might place on social services. The applicant is required to provide the officer with information of sufficient quality and detail to permit an assessment of the probable need for social services. In addition, the applicant may provide evidence of ability and intent to reduce the cost and impact on Canadian social services, and this would have to be considered in making a decision.

Cost threshold for health and social services

The cost threshold is determined by multiplying the per capita cost of Canadian health and social services by the number of years used in the medical assessment for the individual applicant. This cost threshold is updated every year.

Effective  January 1, 2017, the updated cost threshold is $6,655 per year. This figure is usually multiplied by five (unless the anticipated length of stay is shorter than five years or there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years). This results in the legislated threshold of $33,275.

Instructions for assessing cases of excessive demand

Social services involving special education services

Rather than perform a cost assessment, medical officers should qualitatively assess whether an applicant who requires special education services may be medically inadmissible on the grounds that their health condition might reasonably be expected to cause excessive demand on health and social services. The assessment should consider diagnostic and behavioural indicators compared to the baseline education needs of other students. If available, quantitative indicators should also be incorporated. Whenever the medical officer decides that a health condition involves excessive demand, the instructions below for procedural fairness should be followed.

Applicants requiring special education services may include school-aged children diagnosed with

  • autism or autism spectrum disorder;
  • deafness;
  • legal blindness;
  • an intellectual disability; or
  • a significant behaviour or psychiatric disorder that could make being placed in a regular classroom setting a danger to them or others.

Instructions for procedural fairness

Recording the decision and document retention

All steps in the decision-making process must be documented in the applicable electronic system (i.e., the Global Case Management System [GCMS]), including all communications involving the applicant’s representative and the medical section.

Copies of the applicant’s declaration regarding their ability and intent to mitigate excessive demand in response to the procedural fairness letter, as well as all supporting documents and information, must be sent to the medical officer. The original documents must remain in the immigration file.

Before entering a medical-admissibility decision, visa or immigration officers should always review the medical opinion, along with the material received from the applicant, and record the review process in GCMS, as applicable. See the flow chart describing the assessment process.

Instructions for medical officers

  1. When a medical officer decides that a health condition involves excessive demand on social services or outpatient medication, the medical officer should
    • write a medical narrative on the Medical Notification form [IMM 5365B];
    • code the medical file as
      • M5 (excessive demand) with one of the following sub-codes:
        • T9 for excessive demand on social services,
        • H9 for excessive demand on health services,
        • E9 for displacement of Canadians who are on a waiting list, or
      • M45/M56 if the foreign national has a health condition that might reasonably cause an excessive demand in addition to a condition that is likely to cause a danger to public health or safety;

        Note:For M45/M56 cases, the applicant’s ability and intent to mitigate excessive demand does not apply to medical conditions that likely to cause a danger to public health or safety.

    • write a list of the required social services and outpatient medication and the overall anticipated costs. In the case of an applicant who needs special education services, write a list of required special education services, supported by diagnostic and behavioural indicators compared to the baseline education needs of other students. A quantitative cost assessment may be included, if available, but is not required for special education cases. The list of social services and outpatient medication should be based on a detailed assessment, recommendations provided by a recognized specialist in the field and the experience and knowledge of the medical officer. The medical officer may consult colleagues or Canadian experts, as necessary;
    • provide a statement as to the probable costs of anticipated health services (i.e., outpatient medication) and social services, with the exception of special education services, that would likely exceed the average Canadian per capita health and social services costs over a period of time; and
    • state the period considered to the visa or immigration officer (in the medical officer’s opinion).
  2. When reviewing the information submitted in response to the procedural fairness letter, the medical officer should:
    • acknowledge receipt of the applicant’s response, and keep a confirmation of receipt in the medical file;
    • review the entire medical file, as well as the newly submitted material, before an opinion is provided and documented in the record;
    • consider any supporting documentation provided, as the medical officer may take into consideration a variety of factors, including the following:
      • availability of the planned alternative,
      • feasibility and quality of the service-delivery method, and
      • funding of the organization delivering the service, where applicable (is it funded by federal, provincial or territorial governments to such an extent as to fall within the regulatory definition of “social services”?);
    • determine whether the affected individuals would still cause excessive demand on anticipated health services (i.e., outpatient medication) or social services if the diagnosis and list of required services were maintained and if the individuals were to follow the plan as outlined (in doing so, the medical officer uses their medical expertise and knowledge of the Canadian health and social services sector); and
    • provide a medical opinion to the visa or immigration officer, who will review it and record the process in GCMS.

      Note: Medical officers should not address issues of financial ability and intent, but they may direct questions to the visa or immigration officers if there are issues that could affect their assessment.

      The onus is always on the applicant to provide the information necessary to overcome a decision of inadmissibility. The information provided by the applicant must be of a quality and standard that permits an appropriate assessment. If the information provided within the allowed period of time is not satisfactory, or if no information is provided, the medical officer may provide an opinion that the applicant or family member is inadmissible due to their medical condition.

Instructions for visa or immigration officers

  1. Upon receipt of this opinion from the medical officer (with an accompanying narrative report, list of social services, outpatient medication and overall expected costs), the visa or immigration officer should
    • send the procedural fairness letter (excessive demand), the relevant sections of the IRPR, and the Declaration of Ability and Willingness to the applicant (this letter invites the applicant to provide additional information required to overcome the finding of inadmissibility);
    • ensure the procedural fairness letter explicitly informs the applicant of the required care, social services and outpatient medication that are critical to the individual being assessed as medically inadmissible (M5); and
    • ensure the procedural fairness letter explains that the applicant may challenge the diagnosis and list of required services and that the applicant must demonstrate they have a plan to obtain all the services and manage the costs associated with the services as outlined in the letter, or provide an alternate, detailed plan with costs.
      Note: The applicant may then decide to
      • accept the medical opinion and not respond to the procedural fairness letter;
      • challenge the medical opinion and/or assessment of excessive demand; or
      • accept the medical opinion and submit a proposed plan that details where they will secure the essential services, the cost of these services and outpatient medication, and how they will pay for the services.
  2. In cases where applicants contact the office prior to the end of the given time frame to indicate that they intend to make submissions but require additional time (to gather the required information), the visa or immigration officer should review the request and consider granting an extension.
  3. Upon receipt of the applicant’s response to the procedural fairness letter, the visa or immigration officer
    • should review the response to the procedural fairness letter;
    • should verify, as needed, the authenticity of the plan, the validity of the associated costs and the cost mitigation strategy proposed by the applicant. This may mean the immigration or visa officer will need to contact social services agencies or provincial health or educational authorities, as identified in the applicant’s plan;
    • must be satisfied that the applicant has the ability and intent to mitigate the cost of the required health (i.e., outpatient medication) and social services;
    • may send a follow-up request to the applicant if the applicant has not provided complete, detailed information in response to the list of required health (i.e., outpatient medication) and social services and the overall expected cost. The follow-up request should specify a time frame in which to respond to the request and inform the applicant that if no further information is received, a decision will be made using the information on file;
    • should request the opinion of the medical officer if the applicant challenges the diagnosis or the required treatment and seek the opinion of the medical officer on the nature of the plan and whether the services proposed are acceptable within the Canadian context, considering the medical condition; and
    • should keep a confirmation of the medical officer’s receipt of the applicant’s response in the immigration file (if applicable).

Procedural fairness outcomes for different scenarios

If the applicant does not respond to the procedural fairness letter within the given time frame

The visa or immigration officer should finalize the application based on the existing information on file.

If the applicant challenges the medical opinion or excessive demand assessment but has not provided a declaration of ability and intent or a plan to mitigate the excessive demand on health and social services

Upon review, the medical officer may do one of the following:

  1. withdraw the opinion of inadmissibility and request additional information when the applicant’s submissions are insufficient to reach a medical opinion;
    • The applicant has provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer should withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment.
  2. maintain the original medical assessment;
    • The applicant has not provided sufficient information to overcome the initial medical assessment. The medical officer should communicate to the visa or immigration officer that the original medical assessment remains in effect.
    • The visa or immigration officer finalizes the application based on the existing information on file, considering all the circumstances of the case, and, if appropriate, the case may be refused based on inadmissibility on health grounds.
  3. issue a new medical opinion of inadmissibility;
    • The applicant is notified of the new inadmissibility, and applicable procedural fairness procedures apply.
  4. determine that the applicant is no longer inadmissible.
    • The applicant or applicant’s family member is no longer inadmissible, and the file proceeds as per standard procedures.

If the applicant submits a declaration of ability and intent as well as supporting documentation to mitigate the excessive demand on Canadian health and social services (the applicant may or may not have challenged the medical assessment)

Upon review, the medical officer may do one of the following:

  1. withdraw the opinion of inadmissibility and request additional information when the applicant’s submissions are insufficient to reach a medical opinion;
    • The applicant has provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer should withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment.
  2. maintain the original medical assessment;
    • The applicant has not provided sufficient information to overcome the initial medical assessment. The medical officer should inform the visa or immigration officer that the original medical assessment remains in effect.
    • The visa or immigration officer finalizes the application based on the existing information on file, considering all the circumstances of the case, and, if appropriate, the case may be refused based on inadmissibility on health grounds.
  3. issue a new medical opinion of inadmissibility;
    • The applicant is notified of the new inadmissibility, and applicable procedural fairness procedures apply.
  4. determine that the applicant may no longer be inadmissible.
    • The medical officer should give the visa or immigration officer an opinion on whether or not the plan to mitigate the excessive demand on health and social services is detailed enough, credible and viable.
      • If the medical officer is satisfied that the mitigation plan is detailed enough, credible and viable, the diagnosis and required services remain valid from a medical point of view. As a consequence, the inadmissibility on health grounds also remains valid, and the M5 assessment should not be changed. The admissibility of the applicant is based on the visa or immigration officer being satisfied that the applicant has provided enough information to overcome the inadmissibility but not to change the initial medical opinion, which remains valid.

Assessing declarations of ability and intent

Overview

A declaration of ability and intent submitted without a supporting plan is not sufficient to establish that an applicant or an applicant’s family member will not impose an excessive demand on Canadian health (i.e., outpatient medication) and social services. A declaration of ability and intent must be supported by a detailed, credible and viable plan. The quality of the mitigating plan is the most significant element in assessing ability and intent, and the plan should reflect the individual needs of the affected person.

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. 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, is it likely that the applicant will have the financial ability to cover these expenses, considering the full period covered by the medical opinion? Would persons applying under the investor, entrepreneur or self-employed classes still meet the definition of the class without this money? What is the applicant’s prospect of employment? Will the proposed employment cover normal living expenses and the cost of the health (i.e., outpatient medication) and social services required?
  • If the applicant intends to receive support from a family member, another individual or an organization, how likely is it that this person or organization will provide free or cost-reduced assistance for the period of time assessed? How legitimate is this offer of assistance? Has the individual or organization done this in the past? Can the qualifications and experience of the individual or organization be confirmed? If the individual or organization will provide this service without remuneration, do they have the financial ability to do so? Where this type of information is not readily available in the file, the officer may request additional information from the applicant.
  • At what point is the applicant in terms of planning? If the applicant is outside Canada, have they already made all the arrangements for the services to be delivered upon arrival? If the applicant is in Canada, have they relied on publicly funded services in the past? How serious do they appear to be with regard to this plan?
  • Has the applicant relied on publicly funded services in the past in the country where the applicant resided? Are publicly funded services available in the country where the applicant resides or resided? Are privately funded services available in the country where the applicant resides or resided?

If the immigration officer is not satisfied, and a consideration of all the circumstances of the case suggests that a refusal is appropriate, the officer may refuse the application for inadmissibility on health grounds. Again, detailed case notes are made in GCMS.

If the immigration officer is satisfied that the applicant or applicant’s family member will not cause excessive demand on health and social services, the officer enters a positive medical admissibility decision. The case then proceeds towards finalization, as per standard procedures. The declaration of ability and intent is retained on file, and detailed case notes are made in GCMS.

Coding for excessive demand cases following a favourable procedural fairness outcome

At the end of the process, if the applicant has satisfied the visa or immigration officer that the applicant has the ability and intent to mitigate the cost of the required social services, the visa or immigration officer should change the excessive demand code (H9, T9 or E9) with a positive excessive demand code (H1, T1 or E1) in GCMS, although the medical assessment code should remain unchanged (M5). With GCMS, instead of putting in a code “1”, the officer will select Pass for the medical section on the visa or immigration officer side; this will not change any of the information on the medical evaluation.

It is important to note that, from a medical point of view, the diagnosis and required services remain valid; as a consequence, the inadmissibility on health grounds also remains valid, and the M5 assessment should not be changed. The admissibility of the applicant is based on the visa or immigration officer being satisfied that the applicant has provided enough information to overcome the inadmissibility but not to change the initial medical opinion, which remains valid.

Procedural fairness algorithm

Procedural Fairness Algorithm described below

  1. The medical officer withdraws the opinion of inadmissibility and requests additional information when the applicant’s submissions are insufficient to reach a medical opinion.
    • The applicant has provided information that leaves the medical officer in doubt regarding the initial medical assessment; however, the applicant has provided insufficient information to make a final decision. The medical officer should withdraw the current opinion of inadmissibility and request additional information from the applicant in order to reach a new medical assessment.
  2. The medical officer sends to the immigration or visa officer the medical opinion of excessive demand on health (i.e., outpatient medication) and/or social services.
  3. The immigration or visa officer sends the applicant
    • a procedural fairness letter (excessive demand);
    • the IRPR;
    • the declaration of ability and intention

    The applicant responds within 60 days

    • The applicant challenges the medical opinion.
    • The applicant challenges the excessive demand.
    • The applicant provides a mitigation plan.
    • The immigration or visa officer and/or medical officer reviews all submitted material.
      • Not successful
        • The medical officer maintains original assessment.
        • Inadmissible [A38(1)(c)]
        • Refusal letter
          Or
        • The medical officer issues new medical opinion of inadmissibility.
        • New medical inadmissibility
        • New procedural fairness letter
      • Successful
        • The medical officer determines that the applicant may no longer be inadmissible.
        • Process toward finalization
          Or
        • The medical officer determines that the applicant may no longer represent an excessive demand.
        • Process toward finalization

    The applicant does not respond within 60 days

    • Inadmissible [A38(1)(c)]
    • Refusal letter
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