Operational Bulletins 063 – September 24, 2008

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.

Assessing Excessive Demand on Social Services

Background

In light of the Supreme Court decision in Hilewitz v. M.C.I. and de Jong v. M.C.I., and subsequently the Federal Court of Appeal decision in M.C.I. v. Colaco, officers must consider all evidence presented by an applicant, before making a decision of inadmissibility due to excessive demand on social services. Evidence regarding both ability and intent to mitigate the cost of social services in Canada must be considered, if presented.

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 impact on Canadian social services, and this would have to be considered in making a decision.

While the certified question in Colaco related to skilled workers, the Appeal Court stated that s. 38(1)(c) of IRPA requires “an assessment of the health condition of a foreign national and of the resulting risk that that person will cause excessive demand on social services” (which includes an assessment of ability and willingness to pay, where the applicant provides such evidence). It is clear from the judgment that the Court views Hilewitz and de Jong as applying to all categories of immigrants.

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 costs for health and social services.

The cost threshold is determined by multiplying the average Canadian per capita health and social services costs by the number of years used in the medical assessment for the individual applicant (see Annex 2). This cost threshold is updated every year.

The definitions of “excessive demand” and “social services” are found in subsection 1(1) of the Immigration and Refugee Protection Regulations (see Annex 5). 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 latter definition. 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:

(a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and

(b) 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 Hilewitz and de Jong decision, a summary is available in Annex 1. The entire text of the decision can be found at: scc.lexum.umontreal.ca/en/2005/2005scc57/
2005scc57.html

The entire text of the Federal Court of Appeal’s decision in Colaco can be found at: decisions.fca-caf.gc.ca/en/2007/
2007fca282/2007fca282.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 through the applicable channels, if they need assistance.

Decision making

Medical and immigration officers may wish to take into account certain additional principles established by case law in making decisions:

  • All supporting evidence presented by an applicant must be considered in making a decision, and this consideration must be documented on file.
  • Decisions about excessive demand on Canadian social services must take into account evidence of the likely circumstances of the applicant or their family member once in Canada, including the intended province/territory of destination, as presented by the applicant.

These procedures apply to those applicants whose inadmissibility, or that of their family member, arises from anticipated excessive demand on social services (EDSS).

Any evidence presented by the applicant regarding ability and intent to offset the excessive demand on social services must be taken into consideration. Identified social service needs, at the applicant’s option, may be addressed by means such as family support (including home schooling), community support, or purchased private-sector social services, for example.

  • If the intent is to receive non-financial assistance from a family member, other individual or organization, the applicant will have to demonstrate that this anticipated assistance is credible and meets the real needs of the individual.
  • If they intend to purchase private-sector social services, they will have to demonstrate that they have the intention and financial ability to defray the related costs and that this defrayment is feasible in the province/territory where they intend to reside. This information should include, for example, the name of the school and the name of the director of the school.
  • The quality of the planned services should be seen to meet not only the needs of the applicant or dependant, but also the provincial/territorial standards where they intend to reside. Applicants will need to demonstrate that the individuals or agencies providing these services have the appropriate qualifications and experience.

When reviewing the information submitted, in response to the procedural fairness letter, the medical officer reviews the entire medical file, as well as the newly submitted material, before an opinion is provided and documented in the record. It is possible that upon review, the medical officer may issue a new medical opinion.

When reviewing the applicant’s evidence, the medical officer will consider any supporting documentation provided. The medical officer may take into consideration a variety of factors, including the following:

  • the availability of the planned alternative;
  • the feasibility and quality of the service-delivery method; and
  • the 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?).

The onus is always on the applicant to provide the information necessary to overcome a decision of inadmissibility.

If, based on the information provided by the applicant, the demand on Canadian health and social services is likely to be reduced to a degree such that it is no longer excessive, the medical officer should maintain the original medical opinion, but add a note that draws the additional mitigating factors to the attention of the immigration officer. The immigration officer will assess the likelihood of the plan being implemented in the intended province/territory of destination or residence. The immigration officer will then evaluate the applicant’s intent and ability to offset the excessive demand on Canadian social services and make a decision as to whether or not the applicant is admissible on health grounds.

Immigration and medical officers should work closely together during the process and document this collaboration. If the immigration officer concludes that a medical opinion is unreasonable, incomplete, or based on insufficient information, the officer should seek clarification from the medical officer. The medical officer should also be advised of the final decision.

Recording the decision and document retention

All steps in the decision-making process must be documented in the applicable electronic system (CAIPS, FOSS or CPC), including all communications with the applicant, the applicant’s representative, and the medical section.

Copies of the applicant’s declaration regarding 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 originals must remain in the immigration file.

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 the CAIPS, FOSS or CPC system, as applicable.

A step-by-step breakdown of the assessment process follows. A flow chart describing the assessment process is also included in Annex 3.

Procedures

1. If the medical officer is of the opinion that the health condition of an applicant, or the applicant’s family member, might reasonably be expected to cause an excessive demand on social services (M5), the medical officer writes a medical narrative, followed by a list of the required social services and their cost implications.

Upon receipt of this opinion, the immigration officer sends out the EDSS procedural fairness letter in Annex 4, the pertinent sections of the Regulations in Annex 5, and the Declaration of Ability and Intent in Annex 6. This letter invites the applicant to provide the additional information required to overcome the finding of inadmissibility.

2. For applicants who 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 all the required information, the immigration officer should review the request and consider granting an extension.

3. Below are instructions for the different circumstances:

a) Applicants who do not respond to the procedural fairness letter

If no response to the EDSS procedural fairness letter is received within the given time-frame, the applicant will not have provided information sufficient to overcome the original medical assessment, which therefore remains valid. The immigration officer will proceed to finalize the application based on the existing information on file.

b) Applicants who challenge the medical opinion and/or excessive demand assessment but have not provided a declaration of ability and intent or a plan to mitigate the excessive demand on social services.

If in response to the EDSS procedural fairness letter, the applicant submits only information challenging the medical opinion and/or excessive demand assessment, and upon review:

  • The medical officer maintains the original medical assessment
    The applicant will not have provided information sufficient to overcome the initial medical assessment. The medical officer will communicate to the immigration officer that the original medical assessment remains in effect. The immigration officer will then proceed to finalize the application based on the existing information on file. The immigration officer will consider all the circumstances of the case and, if appropriate, the case may be refused based on inadmissibility on health grounds. Information on medical refusals can be found in Section 3 of OP 15.
  • The medical officer reviews the applicant’s submission and issues a new medical opinion of inadmissibility
    The applicant is notified of the new inadmissibility and applicable procedural fairness procedures apply.
  • The medical officer determines 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.

c) Applicants who submit a declaration of ability and intent as well as supporting documentation to mitigate the excessive demand on Canadian health and social services (these applicants may or may not have challenged the medical assessment).

The immigration officer sends a copy of the applicant’s Declaration of Ability and Intent as well as the cost-mitigating plan, and any other relevant information, to the medical officer. The medical officer acknowledges receipt, and confirmation of receipt is kept in both the immigration and medical files.

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 plan as outlined. In doing so, the medical officers use their medical expertise and knowledge of the Canadian health and social services sector. They review the applicant’s proposed plan, keeping in mind availability, quality, feasibility, and funding. Medical officers will not address issues of financial ability and intent, but may direct questions to the immigration officers, if there are issues that could affect their assessment.

The medical officer will provide a medical opinion to the immigration officer, who will review it and record the process in the CAIPS, FOSS or CPC system.

If upon review of the applicant’s information:

  • The medical officer maintains the original medical assessment
    The applicant will not have provided information sufficient to overcome the original medical assessment. The medical officer will communicate to the immigration officer that the original medical assessment remains in effect. The immigration officer will then proceed to finalize the application based on the existing information on file. The immigration officer will consider all the circumstances of the case and, if appropriate, the case may be refused based on inadmissibility on health grounds.  Information on medical refusals can be found in Section 13 of OP 15.
  • The medical officer reviews the applicant’s submission and issues a new medical opinion of inadmissibility
    The applicant is notified of the new inadmissibility and applicable procedural fairness procedures apply.
  • The medical officer determines 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.
  • The medical officer reviews the applicant’s submission and, based on the information provided, determines that the applicant (or family member) may no longer present an excessive demand
    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.

4. Assessing declarations of ability and intent

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 social services. A declaration of ability and intent must be supported by a credible 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 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 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 social services required?
  • If the applicant intends to receive support from a family member, other individual or an organization, how likely 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? If the individual/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?

5. 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. 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 the CAIPS, FOSS or CPC system.

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 the CAIPS, FOSS or CPC system. Information on medical refusals can be found in Section 13 of OP 15.

Coding

The following codes have been added to the immigration medical system (IMS) to inform the immigration officer that the client is inadmissible due to a health condition:

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.

The system will allow the entry of simultaneous codes (H & E, T & E, etc.). For example, a person can be inadmissible because their condition is causing an excessive demand on both health and social services.


Annex 1

Summary of the Supreme Court of Canada decision in Hilewitz and de Jong

The Supreme Court of Canada (SCC) rendered its decision in Hilewitz v. M.C.I. and de Jong v.M.C.I. on Friday, October 21st 2005. In this case, the SCC held that the applicants’ ability and willingness to pay for social services and to make a commitment not to use publicly funded social services must be considered, when assessing whether they and their families are admissible to Canada as immigrants. Both applicants applied as business-class immigrants.

The SCC decided that the personal circumstances of the business-class applicants and their families were relevant factors in a section 19(1)(a)(ii) (Immigration Act, 1976) assessment of their anticipated impact on social services. The SCC emphasized that the appeals were restricted to the issue of social services and that they were raised in the context of individuals who qualify for admission in the “investor” and “self-employed” categories, which are, to a large extent, concerned with an individual’s assets. These categories reflect an aspect of immigration policy which admits individuals who are expected to make a more immediate, substantial economic contribution to Canada. The SCC emphasized the incongruity in interpreting legislation in such a way that the very assets that qualify investors and self-employed individuals for admission to Canada can simultaneously be ignored in determining the admissibility of their disabled children.

After an extensive review of the legislative history, the SCC also concluded that there was a legislative intention to shift away from an approach based on categorical exclusion, to one calling for more individualized assessments; thereby rejecting medical admissibility decisions based on condition alone (the “cookie-cutter” approach). In assessing whether an applicant’s health might reasonably be expected to cause excessive demand on health or social services, medical officers must determine both the nature, severity and duration of an applicant’s disability or impairment and the applicant’s likely requirement for, and entitlement to, publicly funded health or social services. They must subsequently evaluate the demand for those services. (This remains the requirement for all classes of potential immigrants, but for a few exceptions, such as refugees, protected persons and some family members.)

Canada can design its immigration policy in a way that reduces exposure to undue burdens caused by potential immigrants. Since the notion of “excess demands” was first introduced in the Immigration Act, 1976, it has not been possible to base findings of medical inadmissibility on the mere existence of a medical condition. As per the Supreme Court in Hilewitz, assessing the potential requirement for services, based on the classification of the impairment, results ina generic rather than an individual assessment of the application. The relevant provisions of both the former Immigration Act and IRPA require that an individualized assessment be performed.

The majority of judges found that Hilewitz and de Jong’s ability and willingness to attenuate the burden on the public purse that would otherwise be created by their children were relevant factors in determining whether those children would reasonably be expected to cause excessive demand on Canada’s social services.

The SCC decision also found that the immigration officers’ failure to read the families’ responses to the procedural fairness letters meant that the decisions were not based on all relevant, available information.

The threshold as to whether or not an individual’s medical condition “would” or “might reasonably” be expected to result in excessive demand is reasonable probability and not remote possibility.


Annex 2

Excessive Demand Cost Threshold

A. Issue

  1. Updating the Excessive Demand Cost Threshold.

B. Objectives

  1. To update the Excessive Demand Cost Threshold for use by Health Management Branch (HMB) officers undertaking immigration medical assessments, ensuring that the threshold is fully compliant with the legislation.
  2. To establish a process for regular updates of the threshold.

C. Background

  1. In 2002 the Immigration and Refugee Protection Act was implemented. Under section 38(1)(c): “A foreign national is inadmissible on health grounds if their health condition … might reasonably be expected to cause excessive demand on health or social services.” Division I of the Immigration and Refugee Protection Regulations defines “excessive demand” 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 most recent medical examination required by these Regulations, 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 or delay in the provision of those services to Canadian citizens or permanent residents.
  2. Upon the implementation of IRPA in 2002, the threshold figure that was used was the Canadian Institute for Health Information (CIHI) aggregate that represented average Canadian per capita health expenditure.
  3. In January 20031 a modified approach was implemented by Medical Services Branch, now Health Management Branch; since the CIHI figure did not completely cover expenditures for certain social services. A supplementary amount of $218 was identified to account for the missing per capita expenditures. Instructions were issued that this new supplementary amount should be added to the aggregate CIHI figure to arrive at the Excessive Demand Cost Threshold. At the time, the CIHI figure was $3839. When added to the supplementary figure of $218, the threshold was $4057. That threshold figure has been used since January 2003.
  4. CIHI produced new data in its annual report,2 which is incorporated into this updated threshold. The report is accessible at the following link: secure.cihi.ca/cihiweb/products/hcic2007_e.pdf

D. Methodology

  1. The new threshold is $4,806; the CIHI average of $4,548 plus the updated supplementary amount of $258.
  2. This figure will be updated by December 1st each year.

E. Operational guideline

  1. This updated threshold of $4,806 is multiplied by 5 to arrive at the legislated threshold of $24,030 that is to be used effective December 1, 2007.

F. Consultations

  1. Legal
  2. CIHI
  3. Australian Department of Immigration and Citizenship

G. HMB approval and authority

  1. DG, Dr. Lise Scott
  2. HMB management team

H. Implementation and review dates

  1. Implementation date: December 1, 2007
  2. Update target date: November 30, 2008

I. Contacts

  1. Strategy, Policy and Business Effectiveness Directorate, HMB:

1 Memorandum, Revised Average Canadian Per Capita Health and Social Service Costs, Dr. Sylvie Martin, A/Director, Health Program Elaboration, Medical Services Branch (January 2003).

2 Health Care in Canada (2007).


Annex 3


Annex 4

PROCEDURAL FAIRNESS LETTER

Medical inadmissibility — Excessive demand on social services

INSERT LETTERHEAD

Our Ref.:

INSERT ADDRESS

Dear INSERT NAME:
This letter concerns your application for an immigrant visa [or:  application for permanent residence in Canada]. Based on a review of your file, it appears that you or your family member may not meet the requirements for immigration to Canada.

I have determined that you/your family member, [name], are/is a person whose health condition might reasonably be expected to cause excessive demand on social services in Canada. An excessive demand is a demand for which the anticipated costs exceed the average Canadian per capita health and social services costs, which is currently set at $4,806.00 per year. Pursuant to subsection 38(1) [and pursuant to section 42 in the case of a family member] of the Immigration and Refugee Protection Act, it therefore appears that you may be inadmissible on health grounds.

You/your family member, [name], have/has the following medical condition or diagnosis: Insert name of disease or condition and diagnosis from IMM 5365. In particular:

Insert narrative from IMM 5365 – excluding the list of social services required and cost implications.

In consultation with the Health Management Branch of Citizenship and Immigration Canada, I have determined that the following social services will be required:

Insert list of social services required, cost implications and period indicated by the medical officer from IMM 5365.

Before I make a final decision, you have the opportunity to submit additional information that addresses any or all of the following:

  • The medical condition(s) identified
  • Social services required in Canada for the period indicated above
  • Your individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent.

You must provide any additional information within 60 days of the date of this letter. If you choose not to respond, I will make my decision based on the information before me, which may result in your application being refused.

In order to demonstrate that you/your family member will not place an excessive demand on social services, if permitted to immigrate to Canada, you must establish to the satisfaction of the assessing officer that you have a reasonable and workable plan, along with the financial means and intent to implement this plan, in order to offset the excessive demand that you would otherwise impose on social services, after immigration to Canada. The sections of the Immigration and Refugee Protection Regulations that define the meanings of “social services” and “excessive demand” are included for your reference.

Please ensure that you quote the file number indicated at the top of this letter on any information you submit.

Yours truly,

Officer

[Appropriate Signature Block].


Annex 5

Immigration and Refugee Protection Regulations 1(1)

“Excessive demand” means

(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.

“health services” means any health services for which the majority of the 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.

“social services” means any social service, 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,

(a) that is intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and

(b) 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.


Annex 6

Declaration of Ability and Intent

In relation to my application for permanent residence, I acknowledge being informed that ______________ [name of applicant or applicant’s family member] may be inadmissible under section 38(1)(c) of the Immigration and Refugee Protection Act based on the following identified medical condition: __________________.

I acknowledge receiving a letter which listed all the social services required in relation to this medical condition.

I further understand that this application may be refused, unless I can provide a credible plan to an immigration officer, ensuring that I or my dependant will not impose an excessive demand on Canadian social services.

Section 38(1)(c) states:

“A foreign national is inadmissible on health grounds if their medical condition … might reasonably be expected to cause excessive demand on health or social services.”

I am providing, with this declaration, the details of the plan I intend to use in Canada.

I hereby declare that I will assume responsibility for arranging the provision of the required social services in Canada and that I am including a detailed plan of how these social services will be provided, along with appropriate financial documents that represent a true picture of my financial situation over the entire duration of the required services.

I hereby declare that I will not hold the federal or provincial/territorial authority responsible for costs associated with the provision of the social services, which I or my family member would require in Canada and which would otherwise create excessive demand on social services in Canada.

I am signing this declaration of my own volition, not due to force or the influence of any other person, and I make this declaration conscientiously believing it to be true.

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