Learning moments – Medical inadmissibility when an applicant is applying for PR under the economic classes through Express Entry

Hello, fellow practitioners! Today’s question deals with possible medical inadmissibility when an applicant is applying for permanent residence under the economic classes through Express Entry.

I have a question concerning an ongoing express entry application.

My client has a Master’s degree from a Canadian university and is currently on his post-grad work permit. His wife is on an open work permit.

An express entry profile was done last September and a few months later, the wife was diagnosed with a cancer. My client just received his ITA. After several sessions of chemotherapy, the wife is scheduled for a mastectomy this month. The doctors reports suggest that she has no genetic predispositions for cancers and after the surgery there is a good chance of cure. She will require a few months of radiation and several years of hormone therapy post surgery.

I wish to know how best to handle the matter. Will the applicant receive a fairness letter like in the other categories of applications? By that time the surgery and radiation treatment would be over and the doctors would be in a better position to prognose. Will I be allowed to request a TRP with submission of the documents?

The husband is doing a well paid job and he gets medical insurance from the company. Is there anything else that I need to be aware of pertaining to the express entry matter. If unfortunately, if the application is refused, will the family be able to apply under H&C grounds? They have been in Canada several years.

Your question overlaps several important areas of practice – economic class immigration, inadmissibility, temporary resident permits and humanitarian and compassionate requests, as well as general concepts of procedural fairness. Any one of those categories could be an article in itself, so we’ll keep the discussion high level in the interests of time.

Although it isn’t mentioned in the question, I will assume for the sake of this article that the application is under the Canadian Experience Class (CEC), but the analysis below applies equally to any type of PR application.

When a person applies for permanent residence under any category, inadmissibility can always become an issue at some point in the process, whether that’s because of a criminal conviction, a medical issue, or any other type of inadmissibility.

Whether or not a person is entitled to receive a procedural fairness letter (PFL) depends on the situation. Specifically, the right to be notified of an officer’s concerns and to have an opportunity to respond to those concerns is rooted in the common law notion of natural justice, meaning “the right to be heard”.

Procedural fairness is engaged in situations where the applicant could not reasonably have foreseen the officer’s concerns, and it is particularly engaged where the concerns arise from external third party evidence such as a poison pen letter or, in this case, a medical test conducted by an IRCC panel physician. We could spend a whole day unpacking this concept and the case law surrounding it, but suffice it to say where medical inadmissibility arises, a procedural fairness letter will always be issued to the applicant, allowing them a chance to reply. It is IRCC’s policy to do so.

For a good review of the concept of procedural fairness in medical cases, read this Federal Court of Appeal case: https://www.canlii.org/en/ca/fca/doc/2011/2011fca35/2011fca35.html

You can also read IRCC’s general policies about this subject here: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/inadmissibility/reasons/medical-inadmissibility.html

When the PFL is issued, IRCC will provide a report stating what medical services they believe the applicant will reasonably use within the next 5 years, and the cost of those services. They will invite the applicant to respond to it. At that point, you have a couple of choices, and what you end up doing depends on whether you think the IRCC costing report is accurate. Keep in mind that the statutory test for medical inadmissibility is set out in s.38 of IRPA, which states:

38 (1) A foreign national is inadmissible on health grounds if their health condition

In this specific scenario, s.38(1)(c) is likely engaged, as it’s possible (and even likely) that cancer treatment might reasonably be expected to cause excessive demand on health or social services. Everything will depend on what treatments and costs are identified in the IRCC costing report.

You can read more about “excessive demand” here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/standard-requirements/medical-requirements/refusals-inadmissibility/excessive-demand-on-health-social-services.html

If you think the IRCC costing report is incorrect, or only partially correct, you need to respond by filing medical evidence to show why the applicant is unlikely to use those medical services, or that the cost of those services is less. That is a really big topic which is too big to engage in one article. If this is your first medical inadmissibility case, it is highly advisable for you to request mentorship or co-counseling with someone experienced in this area.

If you think the IRCC costing report is correct, you can respond in a couple of ways:

There is no need to wait for the CEC application to be refused before requesting this kind of discretionary relief, and in fact, it’s much better if you make these requests now in the context of the already existing application. This is for several reasons, but the main one is that you already have a perfectly eligible application in process with clear criteria and a clear pathway to PR, so it would be a pity to lose this chance and have to start all over with a separate H&C application. Another reason is that, in my view, it is easier to ask for H&C to overcome just one aspect of the case in the context of an application for which the family is fully eligible and qualified than to make a totally separate application for H&C to be exempted from both the requirement to apply for PR from outside of Canada, on top of also overcoming medical inadmissibility.