Learning moments – Loss of permanent residence due to medical inadmissibility
March 4, 2020
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Hello fellow practitioners! This week’s questions deal with loss of permanent resident status and medical inadmissibility.
Question
This is a question for consideration for the “Learning Moments” column. I recently had a student come to my office inquiring about whether he can lose his permanent resident status due to medical inadmissibility after consulting the link below:
From this link, he clicked on “become inadmissible to Canada’ where “medical reasons” are listed as a reason to potentially be removed from Canada. Could you please clarify if a permanent resident can become medically inadmissible and removed from Canada? And if so, under which circumstances?
Answer
The simple answer is no. If an individual already has permanent resident (“PR”) status in Canada they cannot be removed or be deemed inadmissible to Canada due to a medical condition.
As s. 38 of the Immigration and Refugee Protection Act (“IRPA”) indicates: “38 (1) A foreign national is inadmissible on health grounds.” Only a foreign national can be found inadmissible on health grounds.
Under s.2 of IRPA a foreign national is defined as “a person who is not a Canadian citizen or a permanent resident, and includes a stateless person”
The following will show how an individual can lose PR status and what it means to be medically inadmissible, in order to provide further clarity on the two matters.
Loss of Permanent Resident Status
Under s. 46 of the IRPA these are the following reasons an individual will lose their permanent residence status:
46 (1) A person loses permanent resident status
(a) when they become a Canadian citizen;
(b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;
(c) when a removal order made against them comes into force;
(c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
(d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or
(e) on approval by an officer of their application to renounce their permanent resident status.
A permanent resident loses their permanent residence status and faces deportation from Canada if they become inadmissible on grounds of serious criminality. Permanent residents become inadmissible to Canada because of security or criminality reason. In such situations, the person loses their PR status. If they are in Canada, they have to leave the country, and if they are outside Canada, they may not travel back. Depending on the circumstances, even people who came to Canada as refugees may be deported.
Serious criminality is defined in s. 36 IRPA as:
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
A permanent resident under s.40 and s. 127 of IRPA will also lose their permanent residence status if they are found to misrepresent material facts in their application. Under section 40 of the IRPA a foreign national or a permanent resident will be inadmissible to Canada for five years due to misrepresentation.
Misrepresentation is a major topic on its own and I would refer you to past IMEDA articles that touch on material facts and misrepresentation, and what remedies are available if a person is found to have misrepresented.
When you become a permanent resident of Canada, you need to spend at least 730 days out of your first five years of permanent residency inside Canada. Subsequently, you need to meet the 730-day residency obligation every five-year interval. Residency obligations are governed under s. 28 of the IRPA:
28 (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means of compliance;
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
The two main options for an individual who has lost their PR status, due to the residency obligation, would be to appeal the decision of the officer before the Immigration Appeal Division or show there were sufficient humanitarian and compassionate reasons that lead to having to leave Canada or not being able to fulfill the residency obligation in Canada.
Case law:
· Nekoie v. Canada (M.C.I.), 2012 FC 363, pars. 32-33 (confirms an IAD non-exhaustive list of H&C factors that the officer or the courts will take into consideration)
· Shaath v. Canada (M.C.I.) 2009 FC 731
Medical Inadmissibility
Medical inadmissibility of a foreign national is defined in s. 38(1) of the Immigration and Refugee Protection Regulations (Regulations) as:
38 (1) A foreign national is inadmissible on health grounds if their health condition
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.
Danger to public health
S. 31 of the Immigration and Refugee Protection Regulations (IRPR) outlines what an officer looks for when assessing whether a foreign national’s health condition shall be considered a danger to public health.
31. – Before concluding whether a foreign national’s health condition is likely to be a danger to public health, an officer who is assessing the foreign national’s health condition shall consider
(a) any report made by a health practitioner or medical laboratory with respect to the foreign national;;
(b) the communicability of any disease that the foreign national is affected by or carries; and
(c) the impact that the disease could have on other persons living in Canada.
Danger to public safety
s. 33 of IRPR outlines what an officer assesses when determining whether a foreign national is likely to be a danger to public safety.
33. – Before concluding whether a foreign national’s health condition is likely to be a danger to public safety, and officer who is assessing the foreign national’s health condition shall consider
(a) any reports by a health practitioner or medical laboratory with respect to the foreign national; and
(b) the risk of a sudden incapacity or of unpredictable or violent behaviour of the foreign national that would create a danger to the health or safety of persons living in Canada.
Excessive demand on health or social services
Section 38(1)(c) creates what is known as the “excessive demand” test.
The IRPR defines “excessive demand” in s. 1(1) as:
(a) 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 medical examination, 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
(b) 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 the denial of or delay in the provision of those services to Canadian citizens or permanent residents.
Immigration and visa officers look at a series of factors when determining if there will be an “excessive demand” on health and social services. These factors include “the availability of familial assistance”[1] and the “health care costs of similarly situated Canadians, such as Canadians from the same age group.”[2]
Excessive demand doesn’t look solely at the current health of the applicant, but also at their potential long-term healthcare needs. The calculation looks beyond current costs, and assesses all foreseeable costs that a person could engender. As a result, if it is determined that you have a higher than average risk of being hospitalized or that your medical needs will become too costly in the ten (10) years following your application, the application could be refused.
Excessive demand cost threshold
2019 cost threshold (under the temporary public policy)
$102,585 over 5 years (or $20,517 per year)[3]
This is an amount that IRCC uses to decide if the cost of your condition places an excessive demand on Canada’s health and social services.
A foreign national can show to IRCC and the officer that they will not cause excessive demand on health and social services by developing a mitigation plan.
All information related to a mitigation plan and what is needed can be found at the following website as put out by IRCC:
As seen from above, if your student is already a permanent resident in Canada then they are not at risk of losing their PR status if they have a medical condition, as medical inadmissibility only affects foreign nationals. They will be held accountable during their time as a PR for ensuring they meet the residency obligation and that they do not commit any serious crimes.