Immigration Corner | Are people with disabilities allowed into Canada?

Dear Miss Powell,

I am interested in living in Canada. The problem is that I have a son who is non-verbal, and I’m concerned that this could affect our application. Will this be a problem? Can I still apply for permanent residence under the Express Entry System? Will I have to leave my son behind? I really can’t do that. He is the main reason that I am thinking of applying, as I would like him to go to a school that can help him to do well in life. I hope that you can provide some guidance. Thanks in advance.

KM

Dear KM,

Anyone can apply to come to Canada. The issue is whether your application will be successful based on the applicable laws when you are applying. Let me first explain the rules relating to the Express Entry System and then explain the medical implications.

The Express Entry System manages programmes such as Federal Skilled Worker, Federal Skill Trade, the Canadian Experience Class, and some Provincial Nominee Programmes. The application process is a two-step process. First, you will need to express an interest in being considered for permanent residence in Canada. To do so, you will need to clearly demonstrate that you have the education, skill, language, work experience and other credentials to be eligible.

If you qualify, you will be admitted into the pool of eligible candidates, where you will be given a comprehensive ranking score. At this point, you will need to wait to see if you are selected either based on your score, or if you fall into one of the categories that is being selected. If you are selected for round two, you will be given an invitation to apply for permanent residence.

STEP TWO OF THE EXPRESS ENTRY SYSTEM

Once you have been granted an invitation to apply for permanent residence, you will be expected to upload documents to substantiate your application. At this point, you will need to provide your passport, biometrics, proof of language, education, work experience, and other documents.

Immigration, Refugee and Citizenship Canada (IRCC) announced that as of October 1, 2023, Express Entry applicants will no longer be asked to upload proof of having completed their medical exam at the time of submitting a response to the invitation. At this point, you will be required to pay the requisite fees and documents, then IRCC will begin processing your application.

You will then wait to receive instructions to complete your immigration medical examinations with a panel physician in your home country. This is the point that the medical practitioner will do a medical evaluation of you and your son to see if you are admissible to Canada.

MEDICAL CONSIDERATIONS

The Immigration and Refugee Protection Act sets out the classes of persons who are inadmissible to Canada and prohibited from admission on the grounds of health. It states that if it has been deemed that you or your dependent is likely to be a danger to public health and safety, or might reasonably be expected to cause excessive demand on health or social services, then your application will be denied.

The act, however, exempted certain individuals from this medical inadmissibility provision. Those exempted are individuals who fall under the family class sponsored spouses, common-law partners, or conjugal partners, dependent children, convention refugees, or persons in similar circumstances, and protected persons.

In 2018, the government announced a new policy on medical inadmissibility to bring the immigration rules in line with the current Canadian policy on inclusion of persons with disabilities. The changes involved increasing the cost threshold for medical inadmissibility to three times the previous level.

By tripling the cost threshold, many applicants who require publicly funded prescription drugs would likely become admissible, as the overall cost would not exceed the threshold. For example, the excessive demand threshold applied to the assessment for 2023 is $128,445 over five years, or $25,689 per year, per individual.

Additionally, there was an amendment of the definition of social services to remove references to special education, social, vocational rehabilitation services, and personal support services. By doing so, some applicants with intellectual disabilities, hearing and visual impairments, may now have an opportunity to be considered for permanent residence.

In determining if a foreign national is expected to pose a risk of excessive demand on health and social services, medical officers are directed not to include the following: special education-related services, including services related to the preparation of an individualised education plan and educational assistants; social and vocational rehabilitation services, including services related to rehabilitation facilities, occupational therapy, behavioural therapy and speech language therapy. Added to the list are personal, non-professional support services, such as assistance with activities of daily living, including bathing, dressing, feeding, meal preparation and housecleaning.

PROCEDURAL FAIRNESS LETTER

What this means for you is that if your medical report raises concerns, then that is not the end of the road for you. It simply means that you may be given a procedural fairness letter. At this point, you will be given an opportunity to ‘plead your case’, provide additional information or submissions on the reasons why your application should be approved, given their findings.

If you receive such a letter, I strongly recommend that you consult with a Canadian immigration lawyer immediately, as failure to respond within the required time could result in your application being rejected, and you miss an opportunity to explore other options that may be available to you.

Deidre S. Powell is a lawyer, mediator, and notary public in Canada. Connect with her via Facebook or Instagram. You may request a Zoom/telephone consultation via WhatsApp/ Tel: 613-695-8777.