How to Take Charge of Your Medical Inadmissibility
Every permanent residence applicant and some temporary residence applicants must undergo an immigration medical exam (IME).
Immigration, Refugees and Citizenship Canada (IRCC) considers the results valid for one year. Thus, the applicant must pass a new IME, if the visa has not been issued within that time frame.
The IME is comprised of a physical exam (percentile, body mass index, hearing impairment, diabetes, hypertension, cardiac disease, tuberculosis, debilitating conditions, liver disease, cancer, and developmental delay in children), mental exam (cognitive impairment and psychiatric conditions), review of history (personal and family), laboratory tests (blood: human immunodeficiency virus/syphilis; urine: diabetes/hypertension/kidney disease; chest X-rays: tuberculosis), diagnostic test, and assessment of records.
Assessment
During the IME, the panel physician (PP) evaluates the applicant’s history, diagnosis, treatment/surgery details (medications, hospital admissions, out-patient visits, etc.), lab results, and specialist reports while providing a status of the condition and a prognosis for the medical officer to assess.
The medical officer (MO) analyzes the medical data on a case-by-case basis in accordance with Canadian immigration law and policy. The MO must consider the nature, severity, and probable duration of any health concern (ENF 1 and OB 063). If the disease or disorder poses a potential risk to Canadians or excessive demand on Canadian medical/social services, the case may result in a medical inadmissibility finding. See Hilewitz, Velasquez Perez, and Diaz Ovalle.
Pursuant to section 38 of the Immigration and Refugee Protection Act (IRPA) and sections 20 and 29 to 34 of the Immigration and Refugee Protection Regulations (IRPR), a foreigner is inadmissible on health grounds if a health condition:
- is likely to be a danger to public health;
- is likely to be a danger to public safety; or
- might reasonably be expected to cause excessive demand on health or social services.
Even though the excessive demand element does not apply to sponsoring a spouse, common-law partner, or child of the sponsor (exception) the sponsored person’s application may still be refused if their medical condition is considered dangerous to the public.
In 2005, the Supreme Court of Canada held that the wealth of a foreigner is not a relevant factor for the medical officer to consider when assessing danger to public health or safety (Hilewitz v. Canada, revd 2005 SCC 57, para 88).
Finally, section 42 of IRPA extends medical inadmissibility to other family members. When a dependant is found medically inadmissible, the entire application will be refused. Only legal adoption of the child may be able to prevent that.
Overcoming Inadmissibility
Many medical conditions (e.g. mental illness, cancer, etc.) can lead to a visa refusal. One must convince the medical and immigration officers with a well-researched, documented, and written response to IRCC’s procedural fairness letter by establishing that the applicant will not exceed the annual cost threshold of C$20,517 for 2019 (excessive demand) or that an exemption to IRPA requirements is justified on humanitarian and compassionate (H&C) grounds.
H&C factors can always be raised when dealing with a potential medical refusal. Especially with family class refusals (where sponsors have a right to an appeal), the Immigration Appeal Division (tribunal) will consider H&C reasons, for example: the applicant has no ties to their home country; medical attention is not available in the home country; ties to the sponsor in Canada; best interests of the child; etc.
Some temporary residence applicants who are found medically inadmissible may potentially be granted a Temporary Resident Permit to enter Canada.
After the review of the medical results, the medical officer may anticipate that the health condition might cause excessive demand on Canada’s health or social services. Therefore, the immigration officer will provide a procedural fairness letter before making a final decision. The applicant has 90 days to challenge the medical opinion or request an extension of time.
The burden of proof is always on the applicant to provide the information necessary to overcome an inadmissibility issue. The mitigation plan must show any progress, the type and cost of any medication or service required, and the ability and intent to offset the increased need for medical/social services. In Hilewitz, the Supreme Court of Canada held that the immigration officer must consider the wealthy applicant’s financial situation to determine if the application should be refused.
Common Illnesses
Generally, mental disorders can substantially impact one’s ability to live independently and sustain gainful employment. Therefore, the PP assesses the probability of the applicant to socialize, study, or work normally based on medical history. Accordingly, the PP may request reports from work, school, specialists, health services, and social services to establish whether the condition is likely to remain stable, improve, or worsen.
During the physical examination, the PP identifies psychiatric disorders, within the context of public safety concerns and excessive demand issues, as follows:
- anxiety, personality, or mood disorders;
- depression;
- psychosis; and / or
- substance use disorders.
As depression is the most common mental health issue affecting society today, the PP normally uses questionnaires to screen for depressive disorders. These screening tools include questions about medication. Some anti-depressants (e.g. brand: Effexor - drug: Venlafaxine) can have serious side effects and may damage internal organs (in particular the liver).
In the article, “Drug-Induced Liver Injury during Antidepressant Treatment: Results of AMSP, a Drug Surveillance Program” by Friedrich et al. (2016), the results were published as follows:
The study revealed that incidence rates of drug-induced liver injury were highest during treatment with mianserine (0.36%), agomelatine (0.33%), and clomipramine (0.23%). The lowest probability of drug-induced liver injury occurred during treatment with selective serotonin reuptake inhibitors ([0.03%], especially escitalopram [0.01%], citalopram [0.02%], and fluoxetine [0.02%]). The most common clinical symptoms were nausea, fatigue, loss of appetite, and abdominal pain. In contrast to previous findings, the dosage at the timepoint when DILI occurred was higher in 7 of 9 substances than the median overall dosage. Regarding liver enzymes, duloxetine and clomipramine were associated with increased glutamat-pyruvat-transaminase and glutamat-oxalat-transaminase values, while mirtazapine hardly increased enzyme values. By contrast, duloxetine performed best in terms of gamma-glutamyl-transferase values, and trimipramine, clomipramine, and venlafaxine performed worst. (Results)
Other medicinal drugs (e.g. brand: Zoloft - drug: Sertraline) can make a person very apathetic, to the extent that one is not able to work or even clean oneself.
In the case report, “Antidepressant induced apathy responsive to dose reduction,” by S. Kodela (2010), one of the severe side effects of Sertaline was described as apathy:
Apathy has a significant negative impact on the quality of life. It can be a part of other axis I and axis III disorders such as depression. It has also been reported as a treatment emergent side effect of SSRI drugs. A 48 year old male with diagnosis of personality change due to medical condition and depressive symptoms was started on Sertraline. Although his depressive symptoms, impulse control and his irritability improved significantly he became quite apathetic. This responded positively to a reduction in the dose of sertraline. Since apathy can be a residual symptom of depression it may be a valid consideration to increase the dose of the SSRI. However if apathy was not a significant part of depressive syndrome prior to SSRI treatment then antidepressant treatment emergent apathy needs to be considered and one option is to reduce the dose of the SSRI. Other options appear to be addition of other pharmacological agents such as stimulants, dopamine agonists, acetylcholinesterase inhibitors and NMDA antagonists. (Abstract)
Note: “depression goes into remission” means that a depressed individual is able to return to a normal level of social functioning and self-support.
In addition to questionnaires, the PP considers the following symptoms when screening for conditions that could pose a danger to public safety:
- anti-social, violent, or impulsive behaviour;
- paranoid ideas;
- memory disturbance;
- trauma;
- suicidal or homicidal thoughts; or
- aberrant sexual disorders (e.g. pedophilia).
Evidence of substance abuse, including history and risk for impaired driving offence, will be assessed in light of anti-social, violent, or impulsive behaviour, as well as mood disturbances and psychosis, to establish the likelihood of harm to others.
The PP must grade all IMEs with evidence (test results and reports) of mental disorders “B” and submit files within ten days to the Regional Medical Office.
- Grade A indicates no abnormal findings and no abnormal history — no comments permitted.
- Grade B indicates significant abnormal findings and/or abnormal history — comments required (stable, no medication needed).
The PP provides a full assessment of past and current symptoms and a prognosis on expected investigations, treatments, and services (e.g. detoxification, long term care, special programs). Moreover, the PP may suggest further psychiatric evaluation but must not refer applicants to specialists without instruction by the Regional Medical Office (RMO).
Specifically, cancer, even in remission for many years, could be grounds for medical inadmissibility despite evidence and an expert’s opinion stating that the condition was unlikely to resurface.
During the medical history-taking and physical examination, the PP screens applicants diagnosed with a malignant neoplasm by:
- identifying signs (e.g. scars), symptoms, or a past history of cancer;
- providing reports (e.g. diagnostic imaging, biopsy, specialist reports) and treatments (e.g. medications, referrals, follow-ups, hospitalizations, surgery, chemotherapy, radiation therapy) to assess potential medical needs; and
- completing and grading of an IME.
60% of Canadians diagnosed with cancer will survive at least five years after their diagnosis. Therefore, most survival statistics are reported for five years. For the three most common cancers diagnosed in adults in Canada, the five-year survival rates were as follows.
Survival rates vary from low to high depending on the type of cancer. For example, based on 2006–2008 estimates:
- The five-year net survival rate for lung cancer is low (17%).
- The five-year net survival rate for colorectal cancer is about average (64%).
- The five-year net survival rate is high for prostate cancer (95%) and breast cancer (87%).
As the likelihood of additional medical treatment is higher in cancer cases diagnosed in the previous five years, the PP reports diagnosis, year of diagnosis, status, prognosis, and current symptoms, including:
- fatigue;
- unexplained weight loss, fever, or pain;
- skin changes; or
- loss of appetite;
- soft tissue or bony masses.
In cases of past history or missing reports, the PP refers the applicant to a specialist (e.g. oncologist) for an updated assessment. All IMEs with a history of a malignant neoplasm in the past five years or evidence of malignant neoplasm must be graded “B.”
The art of timing is essential in all aspects of life and law. If you or your dependent family member(s) are ill, contact an authorized representative at myconsultant.ca to discuss your case before you apply.
Disclaimer
Information provided in this article does not constitute immigration or citizenship advice. Authorized representatives are the only individuals allowed to assist applicants with immigration and citizenship services for a fee. In addition, immigration laws, regulations, and policies are changing constantly.
If you need help with the assessment of your case, then obtain sound immigration or citizenship advice from one of the authorized representatives at MyConsultant.ca. Only with a proper case strategy can you reach the ultimate goal of Canadian permanent residence or Canadian citizenship.
Resources
![Katharina Kontaxis [CICC ID: R512662]](https://capicstorage.blob.core.windows.net/shared/myconsultant/1530-ProfilePhoto.jpg)