Humanitarian and compassionate: Medical inadmissibility A38(1)

If discovered at Stage 1

A medical inadmissibility must be confirmed through a medical examination before an exemption can be granted to overcome it. If you intend to refuse an application at Stage 1 and a possible medical inadmissibility would not change that decision, the applicant can be refused without a medical examination.

You should request the applicant complete a medical examination at Stage 1 [R30(1)(d)] if either of the following applies:

• the applicant has specifically requested an exemption from inadmissibility requirements related to health (A38) and you believe that the H&C considerations might outweigh the inadmissibility or
• you suspect that the case involves medical inadmissibility and there appear to be compelling H&C considerations.

If a medical inadmissibility is confirmed by Migration Health Branch and granting an exemption might be warranted, do the following:

• follow the instructions for procedural fairness for immigration officers
• assess any declarations of ability and willingness

Consult with the provincial health authorities, if deemed necessary. The results of any consultation should be included as part of the referral package for the delegated decision maker. Refer to a delegated decision maker. If a medical inadmissibility is confirmed by Migration Health Branch but you determine an exemption is not warranted, refuse the application.

If discovered at Stage 2

You may either:

• refuse the application for permanent residence if you determine that there are insufficient H&C grounds to grant an exemption to overcome section A38 or
• refer it to a delegated decision maker if you believe that the H&C considerations outweigh the health inadmissibility.

See also

• Process for medical refusals

Excessive demand on health or social services under paragraph A38(1)(c)

When assessing cases involving paragraph A38(1)(c) refer to Excessive Demand on health and social services and consider the following factors:

• What is the cost of the treatment or care, if available?
• When the health inadmissibility is one that affects health or social services, are there arrangements to cover treatment, care and other costs (e.g. private insurance, family finances, public health coverage, etc.)?
• Is the applicant likely to become self-supporting?
• Is there a risk the person will require public assistance?
• The extent of the applicant’s anticipated need for health or social services in relation to the average demand for these services by Canadian residents?

Quebec cases

An additional procedure must be completed for medically inadmissible applicants residing in the province of Quebec. Approval in principle (i.e. positive Stage 1 assessment) by the delegated decision maker must occur before a Québec Selection Certificate (Certificat de sélection du Québec [CSQ]) is requested from the Ministère de l’Immigration, Diversité et Inclusion (MIDI) (only available in French).

Medical inadmissibility determined before Stage 1 decision

• If there is sufficient H&C considerations, refer to the delegated decision maker. If the decision of the delegated decision maker is positive the referring officer enters the decision in GCMS. The decision reasons from the delegated decision maker must include a statement that the medical waiver is conditional upon the receipt of a letter of non-objection from the MIDI.

At stage 2 processing, request a CSQ and non-objection letter. The stage 1 decision is conditional until a letter of non-objection and a CSQ are issued by the MIDI.

• If a letter of non-objection and a CSQ are issued, then finalize at Stage 2.
• If the MIDI objects and a CSQ is not issued, inform applicant of possibility of admission to another province.

Medical inadmissibility discovered after positive Stage 1 decision

• If there is sufficient H&C considerations, refer to delegated decision maker.
• If the decision of the delegated decision maker is positive, request a non-objection letter from the MIDI even if a CSQ has already been issued (without knowledge of medical inadmissibility). The decision is conditional until a non-objection letter is issued.
• If CSQ and letter of non-objection are issued then finalize Stage 2.
• If the MIDI does not issue a letter of non-objection, inform applicant of possibility of admission to another province.