Regulations Amending the Immigration and Refugee Protection Regulations (Excessive Demand): SOR/2022-39
Canada Gazette, Part II, Volume 156, Number 6
SOR/2022-39 March 4, 2022
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2022-194 March 3, 2022
Whereas, pursuant to subsection 5(2)footnote a of the Immigration and Refugee Protection Actfootnote b, the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations (Excessive Demand) to be laid before each House of Parliament, substantially in the annexed form;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and sections 17 and 43 of the Immigration and Refugee Protection Act footnote b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Excessive Demand).
Regulations Amending the Immigration and Refugee Protection Regulations (Excessive Demand)
1 The definitions excessive demand, health services and social services in subsection 1(1) of the Immigration and Refugee Protection Regulationsfootnote 1 are replaced by the following:
- excessive demand
- (a) a demand on health services or social services for which the anticipated costs exceed triple the average Canadian per capita health services and social services costs over a period of five consecutive years following the most recent medical examination required under paragraph 16(2)(b) of the Act; or
- (b) a demand on health services or social services that would add to existing waiting lists and would increase morbidity or the mortality rate in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents. (fardeau excessif)
- health services
- means any health services – including the provision of devices related to the services, laboratory services and the supply of pharmaceuticals – for which more than half of the funds are contributed by governments, either directly or through publicly funded agencies. (services de santé)
- social services
- means residential or institutional care, including the provision of devices related to the care, that is recommended by a health professional and for which more than half of the funds are contributed by governments, either directly or through publicly funded agencies. (services sociaux)
2 Section 20 of the Regulations is replaced by the following:
Inadmissibility on health grounds
20 (1) An officer shall determine that a foreign national is inadmissible on health grounds if the officer determines that the foreign national’s health condition is likely to be a danger to public health or public safety or, except for a foreign national referred to in subsection 38(2) of the Act, might reasonably be expected to cause excessive demand.
Danger to public health or public safety
(2) Before determining that the foreign national’s health condition is likely to be a danger to public health or public safety, the officer shall consider any opinions of an officer who is assessing the foreign national’s health condition.
(3) Before determining that the foreign national’s health condition might reasonably be expected to cause excessive demand, the officer shall consider
- (a) any opinions of an officer who is assessing the foreign national’s health condition; and
- (b) any relevant non-medical factors, including
- (i) the foreign national’s intent and financial ability to mitigate any excessive demand, and
- (ii) the feasibility of a mitigation plan, if any, submitted by the foreign national.
3 (1) The portion of section 31 of the Regulations before paragraph (a) is replaced by the following:
31 Before opining 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
(2) Paragraph 31(a) of the French version of the Regulations is replaced by the following:
- a) tout rapport établi par un professionnel de la santé ou par un laboratoire médical concernant l’étranger;
4 (1) The portion of section 33 of the Regulations before paragraph (a) is replaced by the following:
33 Before opining whether a foreign national’s health condition is likely to be a danger to public safety, an officer who is assessing the foreign national’s health condition shall consider
(2) Paragraph 33(a) of the French version of the Regulations is replaced by the following:
- a) tout rapport établi par un professionnel de la santé ou par un laboratoire médical concernant l’étranger;
5 Section 34 of the Regulations is replaced by the following:
34 (1) An officer who is assessing a foreign national’s health condition shall analyze all relevant medical factors that apply to a determination of whether the foreign national’s health condition might reasonably be expected to cause excessive demand and shall prepare an opinion based on their analysis.
(2) Medical factors referred to in subsection (1) include
- (a) any reports made by a health practitioner or medical laboratory with respect to the foreign national;
- (b) any condition identified by a medical examination required under paragraph 16(2)(b) of the Act;
- (c) the availability of and anticipated costs for health services and social services arising from the foreign national’s health status; and
- (d) a consideration of whether a mitigation plan, if any, submitted by the foreign national would provide for appropriate treatment for the health condition and would be permitted under the rules regulating the delivery of health care in Canada.
(3) The officer shall not consider non-medical factors, including
- (a) the foreign national’s intent and financial ability to mitigate any excessive demand; and
- (b) the feasibility of a mitigation plan, if any, submitted by the foreign national.
Coming into Force
6 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: Under the Immigration and Refugee Protection Act (hereinafter the Act), foreign nationals seeking to come to Canada on a temporary or permanent basis may be found inadmissible if they have a health condition that “might reasonably be expected to cause excessive demand on health or social services.” The aim is to reduce impacts associated with migration on health and social services systems in Canada. However, the related provisions of the Immigration and Refugee Protection Regulations (hereinafter the Regulations) create a barrier to immigration for many individuals with health conditions that are in fact manageable, including persons with disabilities. The excessive demand cost threshold, currently set in the Regulations as the average cost of health and social services per person in Canada, screens out too many people who, despite their health condition, would be able to make an economic and social contribution to Canada. In addition, excessive demand cases can be complex and difficult to assess, especially when they involve costs for special education services, which constitute social services under the Regulations. Finally, the regulatory provisions requiring both migration and medical officers to review all information, including non-medical information, create inefficiencies and poses risks to the overall program integrity.
Description: The regulatory amendments (1) increase the excessive demand cost threshold for foreign nationals seeking to come to Canada on a temporary or permanent basis to three times the Canadian average cost per person; (2) eliminate the exceptional period of 10 years from excessive demand calculations for cost of health and social services; (3) redefine “health services” and “social services” to, respectively, provide clarity and remove the reference to certain social services, including special education services; and (4) clarify which officers are responsible for reviewing medical and non-medical information submitted by applicants in the context of excessive demand assessments.
Rationale: The policy on excessive demand on health and social services as reflected in the Regulations is not aligned with Canadian values on the inclusion of persons with disabilities. In addition, assessing excessive demand under the current Regulations is complex and challenging. Provinces and territories (P/Ts) have stopped reporting on individualized costs for special education services, leaving migration officers with insufficient evidence to assess applications for people who require these services.
In October 2017, the Standing Committee on Citizenship and Immigration (hereinafter the Standing Committee) undertook a study of the federal policies and guidelines regarding medical inadmissibility for excessive demand on health and social services. In December 2017, the Standing Committee published a report, which took into consideration testimonies and submissions from many stakeholders. On June 1, 2018, in response to this report, Immigration, Refugees and Citizenship Canada (IRCC) implemented changes to raise the threshold by threefold and to modify the definition of “social services” to remove the reference to “special education services.” These changes were implemented through a public policy until the Regulations could be amended. The public policy has been in place for three years now and a preliminary review indicates that (1) more applicants and family members with “manageable” health conditions, who would have been refused entry in the past, have been able to come to Canada where they can integrate into Canadian society and make economic contributions; and (2) there has been a limited increase in costs for health and social services related to migration, which P/Ts have absorbed.
On the whole, P/Ts have supported the excessive demand policy behind the current Regulations as a mechanism to mitigate impacts on their health and social services costs and on waiting lists for health and social services. At the same time, many P/Ts are sympathetic to the need to address barriers to immigration for persons with disabilities and welcomed a balanced approach of keeping the excessive demand policy, while increasing the cost threshold and removing the consideration of special education and related services. P/Ts have been consulted throughout this review process and are generally supportive of the measures introduced through the temporary public policy, though concerned about the financial impacts.
The regulatory amendments reflect the changes already implemented through the existing public policy. As IRCC has continued to process applications under the public policy, it is assumed that these amendments will not have significant impacts as they simply codify what is already being done in practice. However, one element that is not part of the public policy is clarifying the roles of the migration and medical officer. The costs to IRCC to clarify such roles in the form of implementation costs are estimated at $44,219. The benefits include efficiency gains and improved program integrity, as the clarification will remove the duplication of resources and reduce the complexity and processing times for applications. Another element that is not part of the public policy is repealing the exceptional 10-year period as part of the calculations for the cost of health and social services in assessing excessive demand for greater certainty and fairness. Given that this exceptional 10-year period is rarely used, removing it will result in a less complex and more inclusive process. This exceptional period was originally applied almost exclusively to individuals diagnosed with HIV when there was a lag between diagnosis and treatment, and when disease treatment options were both limited and higher in cost. The 10-year period would have also been used in cases of special education needs between the time of diagnosis and school entry. The exceptional 10-year period is no longer considered relevant given the regulatory amendments remove special education from the definition of social services and increase the excessive demand cost threshold. The 5-year period remains in effect and no changes are being made to this timeline as part of the excessive demand calculations.
The excessive demand cost threshold, as defined in the existing Regulations, poses a barrier to immigration for some applicants. The original excessive demand policy was designed to prevent placing undue strain on health and social services, but as currently reflected in the Immigration and Refugee Protection Regulations (hereinafter the Regulations), it does not strike an appropriate balance between protecting health services and promoting inclusion. By defining excessive demand as a demand for which the costs would exceed the average Canadian per capita costs of health and social services over a period of five years, the original policy screens out people who, despite their health condition or their disability, would be able to make a contribution to the social and economic fabric of Canada. Merely exceeding the national average per capita cost is not to be considered excessive. An increased threshold of three times the Canadian average still supports Canada’s immigration goals, for example as described in the April 2018 news release announcing temporary public policy changes.
The original policy on excessive demand on health and social services, as currently reflected in the Regulations, is not aligned with the Government of Canada’s position that inclusion and diversity benefit Canadian society. The assessment of costs for certain services (including special education, social and vocational rehabilitation services, and personal support services) creates a barrier to immigration for persons with disabilities. The policy treats these costs as a burden to society, rather than as investments that enable participation, inclusion, and positive contributions. As a result, the current Regulations may unintentionally exclude persons with disabilities who, with the support of these services, might otherwise contribute to Canadian society, for example, by attending school, obtaining employment or volunteering their talents.
Cases involving inadmissibility based on excessive demand are among the most complex to process. Cases where social services are required are challenging to process because medical and migration officers frequently have to assess mitigation plans, which can involve reviewing numerous, detailed medical and financial documents. Cases involving special education services are even more complicated, as P/Ts have moved to integrate students needing special education services into mainstream education services. As a result, they no longer report individualized cost data on special education services, which migration officers (who determine admissibility) need to substantiate a finding of excessive demand. The lack of information similarly hinders officers’ ability to fully assess the feasibility of an applicant’s mitigation plan to overcome the costs. Discontinuing consideration of special education services will not eliminate but will reduce the number of situations in which a mitigation plan will have to be assessed and will reduce the complexity associated with processing these cases.
Having medical officers review all information, including non-medical information, is inefficient and is not aligned with the expertise of medical officers. This requirement delays processing and increases the resources needed to assess the application, particularly the applicant’s mitigation plans. It increases risks to the program’s integrity, as medical officers are not trained to assess non-medical information. The Federal Court of Appeal in Lawrence vs. Canada (MCI), 2013 FCA 257, affirming the decision of the Federal Court, held that based on the existing statutory scheme and jurisprudence, migration and medical officers must review all medical and non-medical information provided by clients in their responses to procedural fairness letters. Therefore, regulatory amendments are required in order to differentiate the roles of medical officers.
Excessive demand provisions
All applicants for permanent residence and certain categories of temporary residence must undergo an immigration medical examination to determine if they are admissible to Canada on health grounds. This requirement serves to protect public health and safety and to prevent further strain on health and social services systems in Canada.
Under the Immigration and Refugee Protection Act (hereinafter the Act), foreign nationals, unless exempted, may be found inadmissible to Canada if they have a health condition that “might reasonably be expected to cause excessive demand on health or social services.” As defined in the current Regulations, excessive demand occurs when
- (a) the services required to treat an applicant’s health condition, or that of a dependant, are likely to exceed the average Canadian per capita costs of health and social services (the cost threshold), typically over a period of five years (or in exceptional situations, over a period of up to 10 years); or
- (b) the services required to treat an applicant’s or a dependant’s health condition are expected to add to P/Ts’ waiting lists and would increase the rate of mortality and morbidity for Canadian citizens or permanent residents.
The Act exempts certain individuals from the excessive demand provision, including family class sponsored spouses, common-law partners or conjugal partners, and dependent children. It also exempts refugees under the United Nations Convention Relating to the Status of Refugees and persons in similar circumstances, protected persons, as well as spouses, common-law partners or conjugal partners, and dependent children of those individuals.
The cost aspect of excessive demand is specifically linked to average Canadian per capita health and social services and the waiting list aspect is restricted to impacts on mortality and morbidity. Each year, the value of the cost threshold is updated. It is calculated by adding the average per capita expenditure on health and social services as estimated and reported by the Canadian Institute for Health Information (CIHI) in their annual National Health Expenditure Trend report, and a supplemental amount for certain social services that are not included in the CIHI estimate of national health expenditures (e.g. special education services and social and vocational rehabilitation services). In 2020, the cost threshold was $7,068 per year.
Assessment of excessive demand
In assessing excessive demand, no health condition automatically leads to inadmissibility. Each case is assessed by medical and migration officers on an individual basis, taking into consideration the applicant’s, or dependant’s, immigration medical examination (conducted by third-party physicians in the country of residence of the applicant).
After reviewing the results of a medical exam, the medical officer will conclude that the individual’s health condition poses an excessive demand if the costs required to treat that health condition are likely to exceed the cost threshold or to impact the rate of mortality and morbidity by increasing waiting lists.
Before finalizing the refusal of an application, the migration officer is required to present the applicant with the evidence supporting the refusal and provide the applicant with an opportunity to respond or counter the evidence (this is called the procedural fairness step).
The applicant is given an opportunity during the procedural fairness step, where applicable, to submit a mitigation plan that demonstrates how they would offset or avoid the cost of certain publicly funded services and therefore should not be considered inadmissible for excessive demand.
Mitigation plans are allowed only for social services (e.g. long-term care) and for outpatient (as opposed to in-hospital) medications, as private payment is generally not allowed for other health services (e.g. hospital, physician services). For the latter type of services, residents in Canada do not have the option of opting out of publicly funded health coverage. For the mitigation plan to overcome the inadmissibility issues, the migration officer must find it to be detailed and credible and must be satisfied that the applicant agrees to take responsibility for arranging and for paying for the needed services addressed by the mitigation plan.
In 2013, the Federal Court of Appeal confirmed in Lawrence v. Canada (MCI), 2013 FCA 257 that, when making a decision or an opinion on excessive demand cases, migration officers and medical officers must review all medical and non-medical information, including assessing the credibility and feasibility of financial asset and other non-medical information. This decision was guided by the existing jurisprudence respecting excessive demand, including the Supreme Court of Canada decision in Hilewitz and de Jong [Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57].
Steps taken to address issues related to the excessive demand policy
In 2015, Immigration, Refugees and Citizenship Canada (IRCC) undertook a policy review and noted difficulties in processing excessive demand cases, including the lack of data on the cost of special education services, relied on as evidence to support inadmissibility decisions. At the same time, IRCC was receiving negative media attention related to individual cases and calls from disability stakeholders to review or eliminate the policy. A November 2015 departmental evaluation of the health screening and notification program also identified concerns about the effectiveness of the excessive demand policy relating to the complexity of processing and the use of mitigation plans. In response, IRCC initiated a fundamental review of the policy in 2016.
As IRCC was assessing the review recommendations, the Standing Committee began a study, in October 2017, of the federal government’s policies and guidelines regarding medical inadmissibility of immigrants, with a focus on the excessive demand on health and social services provision. The Standing Committee tabled its report on December 13, 2017, with the following five recommendations for the Government to address: the full repeal of the excessive demand provision; continued consultation and negotiation with P/Ts; data collection to inform decision-making; a parliamentary review; and pending legislative repeal, interim measures to improve the administration of the policy.
On April 16, 2018, the Minister of Immigration, Refugees and Citizenship (hereinafter the Minister) announced upcoming changes to the excessive demand policy through the implementation of a temporary public policy, to be followed by regulatory amendments. The public policy, which took effect on June 1, 2018, effectively raised the excessive demand cost threshold to three times the national average ($21,204 per year in 2020) and removed reference to certain social services, including special education. The public policy allows migration officers to exempt foreign nationals from inadmissibility based on excessive demand if they meet the conditions of the public policy.
The Minister also committed to amend the Regulations to (1) redefine part (a) of the term “excessive demand” in the Regulations as three times the average Canadian per capita costs; (2) redefine “social services” to remove reference to certain social services, including special education, and revise to focus on social services related to health services and continuous care.
Administrative changes recommended by the Standing Committee, which did not require regulatory changes, were also made to improve client service and enhance transparency. They included, for example, revised procedural fairness letters, new plain-language web content and a report on IRCC’s approach to calculating the cost threshold.
The Government opted not to immediately pursue full repeal of the provision, but instead to take time to collect more information to gauge the impact of elimination on P/Ts, most of whom had expressed a lack of support for this option, citing concerns about the cost impacts and the potential to create an even stronger draw factor for applicants and dependants with high medical needs. Full elimination could also have a negative effect on the public’s support for higher immigration levels.
Assessing the impact of the temporary public policy
Implemented on June 1, 2018, the temporary public policy incurred transition costs to Government of $75,399. These costs included implementation costs such as the development and distribution of communications materials across the immigration network, updates to program delivery instructions, and costs to train officers.
IRCC compiled data from June 1, 2018, to May 31, 2019, in order to assess the impacts of the policy on P/Ts. In the year following the implementation of the public policy, there were 62 individuals with health-related issues, who were approved under the new definition, but would have been refused under the previous definition. Note that this figure includes some individuals who also required special education services. After examining the healthcare costs for these 62 people, it was found that admission of these individuals would incur healthcare costs to Canada of $4.2 million over five years (on average, $840,000 per year). Note that this assessment does not account for some applicants who were found to pose an excessive demand under the new definition but may be approved at a later date based on an acceptable mitigation plan (these decisions are made on a case-by-case basis and at migration officers’ discretion) or on compassionate and humanitarian grounds. Moreover, it does not account for the costs of special education services, as reliable data on special education services costs is not readily available.
Furthermore, there were 70 applications made pertaining to special education services only (i.e. did not have any other healthcare concerns). As the new definition of social services under the policy removes all reference to special education services, all 70 applicants were approved. Under the previous definition, decisions regarding these applicants would have been made at the discretion of migration officers.
Together, these findings indicate that the public policy could facilitate the entry of 62 to 132 additional persons per year, with total healthcare costs of $4.2 million over five years. Again, this estimate under-reports cost impacts, as it does not account for special education services costs. These costs may rise over time given planned increases in immigration levels and expected increases in health and social services costs.
While there is a cost burden on provincial and territorial governments, both the Canada Border Services Agency (CBSA) and the Immigration and Refugee Board (IRB) have realized cost savings as a result of the implementation of the public policy. The IRB has observed a reduction of approximately 50 appeals cases per year following the implementation of the public policy, which translates into savings of approximately $115,000 per year ($0.6 million over five years). Similarly, the CBSA’s estimated costs for administering the excessive demand provision at ports of entry and in Canada include the resources needed to prepare section 44 inadmissibility reports, issuing authorizations permitting applicants to voluntarily withdraw their applications, representing the Minister at admissibility hearings and Immigration Appeals Division (IAD) appeals, and removals. Comparing average annual enforcement volumes from years prior to the implementation of the public policy against the enforcement volumes realized in the year following its implementation, the CBSA was found to have realized cost savings of $48,378 ($0.2 million over five years). In total, the CBSA and the IRB expect to realize cost avoidances of $163,378 per year ($0.8 million over five years) as a result of the change in the excessive demand provision.
There may also be further benefits in terms of litigation cost savings, since the changes to the definitions implemented through the temporary public policy serve to facilitate the entry to Canada of additional persons each year (assuming that the volume of applications received each year remains stable). However, the impact of the public policy on litigation costs cannot be properly assessed yet since the public policy has only been in effect since 2018.
In addition, by removing consideration of special education services in the determination of excessive demand, the public policy has reduced the number of situations in which medical officers and migration officers will be required to review and assess a mitigation plan, as well as decreased the degree of complexity involved with processing such cases. This has resulted in processing cost efficiencies and improved program integrity.
As a further benefit, families of applicants who are accepted under the public policy, but who would have been refused under the previous definition of excessive demand, are now permitted to stay in Canada on a temporary or permanent basis. This is because, when an applicant is deemed medically inadmissible, the applications of their family members are also refused. Since fewer applicants are now refused on grounds of medical inadmissibility, fewer family members of applicants are refused on these grounds. Therefore, there is a benefit to Canada in the promotion of inclusiveness.
The regulatory amendments
- reset the excessive demand threshold at a level that would allow for a higher number of people with health conditions to bring economic and social benefits to Canada;
- align the policy with Canadian values on supporting the migration and participation of persons with disabilities in society, while continuing to protect publicly funded health and social services for Canadians; and
- improve the efficiency and the integrity of decision making by clarifying the roles of medical officers and of migration officers in reviewing information submitted by applicants.
- increase the excessive demand cost threshold to three times the average amount that federal, provincial and territorial governments spend per capita on certain health and social services;
- eliminate the exceptional 10-year period from the excessive demand calculations, while leaving the 5-year period intact;
- redefine “health services” and “social services,” as used in excessive demand determinations, by
- (a) removing reference to certain social services, including special education services, that persons with disabilities require to help them overcome limitations to their participation in society,
- (b) focusing on publicly funded social services that provide constant supervision and care for those who are not able to integrate into society (e.g. adult day programs and respite care, as well as the provision of devices related to those services), and
- (c) refining the definitions to provide clarity to the concepts of majority of funding and of publicly funded services, as well as eliminating any overlap between the definitions of health services and of social services; and
- clarify which medical officers and migration officers are responsible for reviewing which medical and non-medical information submitted by applicants in the context of excessive demand assessments.
Provinces and territories
IRCC began consulting P/Ts in 2016 and continues to engage them to assess the impact of the temporary public policy. Engagement is through the governance tables of the Forum of Ministers Responsible for Immigration and through bilateral discussions. Ontario, Alberta, British Columbia and Quebec receive the highest number of immigrants to Canada and, in turn, have the most excessive demand cases, so are expected to bear most of the impacts.
P/Ts, the main stakeholders, have generally supported the excessive demand policy behind the current Regulations as a mechanism to mitigate impacts on their health and social services costs and on waiting lists for health and social services. At the same time, many of them are sympathetic to the need to address barriers to immigration for persons with disabilities and welcomed a balanced approach of keeping the excessive demand policy, while increasing the cost threshold and removing consideration of special education and related services.
During consultations, P/Ts expressed a number of concerns. For example, they raised concerns about the expected cost impacts on their health, education and social services and about the potential impact on waiting lists. They flagged the potential for increased waiting lists for some non-life-sustaining health services, education and social services. They also raised concerns that changes could create a draw factor for immigrants with costly health conditions and weaken the social licence for immigration.
The Government has acknowledged these risks, but notes the benefits related to diversity and inclusion that are anticipated from the changes. The changes have been in effect for more than one year through the implementation of the temporary public policy and IRCC continues to monitor the media for any discussion of impacts on waiting lists and on costs. To date, IRCC has not received any evidence from P/Ts to quantify these impacts that they have noticed.
Complete elimination of the excessive demand policy was an option considered and discussed with P/Ts during IRCC’s engagement with them, as part of the fundamental review in 2017–2018. While many P/Ts were sympathetic to the idea of enhancing inclusivity for persons with disabilities, and they acknowledged the potential for individuals with lower-cost medical conditions to make economic contributions to their jurisdictions, most jurisdictions were firmly opposed to full elimination on the basis of anticipated costs and potential draw for persons with costly health conditions. Some P/Ts recognized, however, the need for changes to the excessive demand policy and noted receiving public pressure to intervene on high-profile cases of refusal. As a result, when the temporary public policy was announced, P/Ts welcomed the balanced approach. Some P/Ts indicated support for the temporary public policy, but reiterated their opposition to full elimination of the excessive demand policy.
IRCC continues to work with P/Ts to monitor and gather data on potential impacts on P/T health and social services costs and on waiting lists. Through the most recent consultations, which took place in November and December of 2020, some P/Ts acknowledged that making the policy changes permanent through regulatory amendments would help to promote inclusion, and for that reason they were supportive. In addition, most P/Ts reaffirmed they remain opposed to full elimination of the excessive demand policy.
However, some concern continued to be expressed about the financial impacts, particularly for the education sector. Some P/Ts noted the need for increased federal transfers and one province objected to the changes unless there is compensation. The Government is not proposing compensation given that the financial impact is small compared to overall health spending by P/Ts (an estimated $172 billion on health in 2019, including $40 billion received from the federal government through the Canada Health Transfer). By contrast, the estimated impact of amending the proposed Regulations is $4.2 million over five years (on average, $840,000 per year) for facilitating the entry of 62 to 132 additional persons per year. Requests for increased transfers may be a reflection of similar P/T views expressed regarding parallel and ongoing discussions with P/Ts about the Canada Health Transfer.
P/Ts did not raise concerns that pressures related to the COVID-19 response have changed their position on support for making this policy permanent. This is likely because the changes have already been in effect for more than three years through the public policy.
As part of the fundamental policy review in 2016–2017, IRCC met with or received written comments from immigration lawyers and representatives, as well as advocates for immigrants and refugees, for people with HIV and for persons with disabilities. As part of the Standing Committee on Citizenship and Immigration’s study of the excessive demand provision, representatives from these communities presented their views to the Standing Committee. HIV and disability stakeholders were consistent in advocating for full elimination of the policy. The views of immigration lawyers and representatives were mixed, with some favouring elimination and others recommending administrative changes to address processing challenges. Given that the changes implemented through the temporary public policy took the middle ground of keeping the policy with certain changes, disability and HIV advocates were disappointed.
There was little public reaction when the IRCC Minister announced in April 2018 his intention to change the policy. Prior to the 2018 announcement, the excessive demand policy garnered considerable negative media coverage, with stories focusing on individuals found inadmissible. Media attention following the announcement has been minimal and mostly factual in nature with a focus on the proposed changes themselves.
IRCC has been signalling its intention to make regulatory amendments related to the excessive demand policy in the Forward Regulatory Plan posted on its website since 2018.
This regulatory proposal was prepublished in the Canada Gazette, Part I, on March 27, 2021, for a 30-day consultation period. During this time, written representations were received from 16 individuals and organizations, including 13 individuals interested in immigration and public health issues, two immigration law offices, and one HIV legal advocacy organization.
Three of the comments received from individuals fell outside the scope of these Regulations, as they pertained to individuals’ eligibility and permanent resident applications that have been submitted or were previously denied. These individuals were referred to the appropriate client service contact to follow up on the specific details of their cases. Some of the comments received were from stakeholders who had previously appeared before, or provided submissions to, the 2017 Report of the Standing Committee on Citizenship and Immigration (“the 2017 parliamentary committee”) which had informed the 2018 temporary public policy on excessive demand.
Stakeholders were generally positive about the initiative. There was broad support for the intent and objective of the initiative. Most stakeholders welcomed the proposal as a balanced approach to supporting the migration and participation of persons with disabilities in Canadian society, while continuing to protect publicly funded health and social services for Canadians. There was general recognition that amending the Regulations to codify what has already been implemented through the 2018 temporary public policy supports Canadian values such as inclusivity by removing barriers for certain immigrants and newcomers to Canada, particularly with respect to removing the reference to special education services in the definition of social services. There was also general support and recognition that tripling the cost calculation threshold for excessive demand has allowed for a more facilitative and inclusive means to allow entry to individuals who are able to make a socio-economic contribution to Canada, thereby facilitating the migration of foreign nationals who would likely have been inadmissible otherwise. Some respondents noted that the data on this is still evolving, as the temporary public policy has only been in place for three years.
Other stakeholders expressed concerns that the initiative could place an additional strain on the public healthcare system and social services in Canada, which they viewed as a system already experiencing underfunding issues that have become more prominent in the current context of the COVID-19 pandemic. Some stakeholders, including immigration law offices and disability and HIV advocates who had appeared or provided submissions to the 2017 parliamentary committee, maintained their position that the excessive demand policy regime should be eliminated. In their view, the cost-saving justifications of the proposed initiative do not consider the actual abilities, capacities and contributions of applicants, and continue to have an adverse effect on persons with disabilities. Notwithstanding these comments, the Regulations codify the balanced approach the Government chose through the implementation of the 2018 policy to support the migration and participation of persons with disabilities in society, while continuing to protect publicly funded health and social services for Canadians. Extensive consultations were held with all stakeholders in developing the 2018 policy, including with provinces and territories who have primary responsibility for the provision of health and social services.
While welcoming aspects of the initiative, one respondent raised concerns relating to the intent and purpose of the proposed changes to definitions, as well as terminology choices in the Regulations. These comments were taken into consideration. Program delivery instructions will be released concurrently with the amended Regulations and will expand upon the definitions and terminology used in the Regulations.
It was also suggested that the exceptional 10-year period used in excessive demand calculations be deleted in the amended Regulations in the interest of streamlining the process and having it be less complex and more inclusive. This concern has been taken into consideration, where the reference to costs that would occur beyond the 5-year period has been removed from paragraph 1(a) of the Regulations.
Other concerns expressed were not regulatory in scope and related to communications. IRCC intends to address these matters outside the Regulations, for example, in publicly available operational guidelines and in communication and outreach materials.
Modern treaty obligations and Indigenous engagement and consultation
No modern treaty implications are anticipated because Indigenous peoples in Canada are not impacted by the amendments. These amendments focus on the admissibility to Canada of foreign nationals.
Relying on the Minister’s authority to grant exemptions from obligations and criteria of the Act and its regulations, the policy changes were implemented in June 2018 through a temporary public policy, with the intention that the changes would be later formalized through regulatory amendment.
The Act gives the Minister the authority to make regulatory changes related to the conduct of examinations and inadmissibility. The terms “excessive demand,” “health services,” and “social services” are defined in the Regulations. Following through with regulatory amendments will promote transparency and reduce the risk of confusion due to differences between the temporary public policy and the regulatory provisions. In addition, given the interpretation by the Federal Court of Appeal of Canada in Lawrence v. Canada (MCI), 2013 FCA 257 of the regulatory provisions setting out the roles of migration and medical officers, it is necessary to amend the Regulations to clarify these roles.
Benefits and costs
For cost benefit analysis purposes, minimal cost impacts are expected, as the regulatory amendments primarily serve to codify the changes that were made through the public policy that was implemented on June 1, 2018.
An important first step in developing a cost benefit methodology is establishing a baseline scenario against which options may be measured. For this analysis, the baseline is a scenario where the public policy would continue to be in effect, whereby the excessive demand threshold is defined as three times the national average cost per person for health and social services, references to select social services, including special education, are removed from the definition of social services, and both medical and migration officers are required to review all information in an application. The public policy would continue to allow migration officers to exempt foreign nationals from inadmissibility based on excessive demand if they meet the public policy conditions. The baseline is then compared with the regulatory scenario, which will codify the existing public policy to give it legal weight and clarify the roles of medical and migration officers when assessing excessive demand.
As stated above, the public policy constitutes the baseline, hence, the only impact assessed for the purposes of cost-benefit analysis is the clarification of the roles of medical and migration officers. While currently, medical officers and migration officers are required to review all information (medical and non-medical related material), the Regulations amend the requirements such that medical officers will only be responsible for reviewing medical information. Therefore, the regulatory amendment represents a benefit to the Government of Canada in the form of efficiency gains, since there is a duplication of effort in the baseline. Resources will be saved under the new Regulations, as medical officers will only be responsible for reviewing medical information. This will facilitate the redirection of these resources to other aspects of the immigration medical assessment process. Furthermore, the regulatory change will mitigate risks to program integrity by aligning medical officers’ responsibilities with their specific expertise, thereby resulting in increased efficiency of the decision-making process.
The incremental costs incurred for the Government of Canada to clarify the roles of medical and migration officers include implementation costs such as updates to bulletins and websites, as well as training materials for officers, including medical officers. These costs are estimated as $44,219. There are no anticipated ongoing costs for subsequent years.
Small business lens
Analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses.
The one-for-one rule does not apply, as there is no incremental change in administrative burden on business.
Regulatory cooperation and alignment
The amendments do not reflect a specific intention by IRCC to minimize regulatory differences or increase regulatory compatibility with another jurisdiction. The most useful approach to situating Canada in an international context has been to compare Canada to its Migration 5 peer countries (Australia, New Zealand, the United Kingdom, and the United States). Within this group, there are variations in the specific approaches used, though the concept of excessive demand on health and social services is one that is applied by all.
The United States and the United Kingdom have no established cost threshold and the balance between public and private healthcare funding differ significantly from Canada. The United States and the United Kingdom make decisions on a case-by-case basis focused on a client’s financial ability to pay for any needed medical treatment. While Canada assesses each case individually, Canada, Australia and New Zealand all have established cost thresholds based on a similar dollar amount that is calculated based on a yearly average multiplied by five years. Furthermore, in Canada, Australia, the United States, and the United Kingdom, there are no conditions that automatically lead to a determination of inadmissibility. By contrast, New Zealand’s policy maintains a list of conditions that automatically lead to inadmissibility.
Strategic environmental assessment
A preliminary scan, conducted in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
While the original excessive demand policy, as reflected in the previous Regulations, was designed to prevent placing undue strain on health and social services, it also rendered inadmissible individuals wanting to work or study in Canada but who have a need for health services that exceed the stringent level of the original cost threshold. Particularly affected were applicants requiring medications to manage a chronic illness.
Removing the consideration of certain social services, including special education, will benefit applicants and family members who have disabilities that limit their participation in society.
The increase in the cost threshold will benefit applicants whose health conditions can be managed with a limited number of services (particularly persons with HIV or hepatitis B). Applicants with health conditions that, when less severe, could also be treated primarily with medications, will also benefit. This includes people with hypertension and osteoarthritis. Most of these applicants will likely become admissible under the modified Regulations because their costs will not exceed the higher cost threshold.
With regard to gender, applicants of all genders will be affected positively by the amendments. With regard to age, children will benefit the most and the elderly (aged 65 and over) will benefit the least by the amendments. Based on a one-year analysis of applications processed in 2018–2019, children accounted for 39% and the elderly accounted for 20% of those who would have been found to pose an excessive demand under the initial policy as reflected in the current Regulations. Under the temporary public policy, children accounted for only 10% and the elderly for 41% of those found to pose an excessive demand. The elderly accounted for a higher proportion of those refused on the basis of excessive demand because in general, the elderly are more likely than younger persons to have costly medical conditions. Also, they accounted for a higher proportion because the temporary public policy resulted in a smaller number of refusals overall. Although elderly applicants would benefit from complete elimination of the policy, the Government opted for a more balanced approach of keeping the policy while making adjustments to the cost threshold and the social services considered. Decisions under the amended Regulations will be monitored to assess for any unintended consequences.
The excessive demand policy was designed to prevent placing undue strain on health and social services. However, as reflected in the previous Regulations, it did not strike an appropriate balance between protecting health services and promoting inclusion. Keeping the excessive demand policy is necessary to continue to protect publicly funded health and social services, but the cost threshold set out in the previous Regulations was too low, and the inclusion of special education services in the assessment of health and social services costs poses a barrier to immigration for persons with disabilities.
Removing reference to special education services in the definition of social services will produce more timely decisions for affected applicants, lowering their costs. For these applicants, the submission of mitigation plans will be less complex, or eliminated.
The Regulations, by continuing to exempt certain immigration categories, will also continue to support Canada’s humanitarian and compassionate goals, including family reunification and refugee protection.
The Regulations could create a draw factor for applicants with high medical needs. Potential immigration applicants could perceive the increased cost threshold and removal of consideration of special education services as a sign of a more open migration health policy. Similarly, while applicants who were previously refused on the basis of excessive demand might reapply, the impact on application volumes is expected to be low since the number of refused cases is small (less than 0.2% of medical assessments). The effect of the policy on deterring applicants with costly health conditions was considered, but has not been quantified as IRCC was unable to demonstrate or refute the possibility with evidence; however, the continued existence of an excessive demand policy is expected to deter and prevent applications with particularly high costs. The potential for a draw factor is partially mitigated by the fact that, even without an excessive demand provision, applicants would still need to qualify under program eligibility criteria (e.g. employability, family relations). Application volumes under the temporary public policy are being monitored so that operational adjustments can be considered and implemented where feasible. To date, an increase in volumes has not been observed.
Consideration was given to increasing the cost threshold by a different multiple of the average per capita cost of health and social services. Setting the cost threshold at four or five times the national average would further add to the cost implications for health and social services in P/Ts. On the other hand, increasing it to twice the national average would facilitate immigration for a more limited number of applicants. At three times the national average, the cost threshold will limit the risk of a draw factor that could attract significant numbers of applicants with costly medical needs. In addition, restricting the increased cost threshold to three times the national average (i.e. at about $100,000 per person over five years), rather than four or five times the national average (approximately $140,000 or $175,000), reduces the strain on local health services associated with the arrival of even just one person requiring costly treatment, particularly in smaller centres and cities. It will also limit costs for P/Ts, and indirectly for taxpayers.
Implementation, compliance and enforcement, and service standards
The regulatory amendments will come into force upon registration.
Since a temporary public policy was implemented in June of 2018, the policy changes relating to the increased threshold are already in effect and are being followed. However, changes clarifying roles of the migration and medical officers will take effect upon the coming into force of the Regulations. Guidance to officers will be provided to confirm that, in evaluating mitigation plans, medical officers will assess medical information only and migration officers will assess all medical and non-medical information. Training will be offered to medical officers. Migration officers will continue to determine inadmissibility based on excessive demand as they had done under the temporary public policy.
IRCC has been working closely with its federal partners, such as the CBSA and the IRB, to ensure that these changes have minimal impact on current operations.
IRCC will monitor the performance of the health screening program on an ongoing basis, including as a result of the regulatory amendment and will report progress as part of the IRCC’s departmental performance reporting process.
The health screening program is scheduled to be evaluated within the next five years, and the timing will be reviewed as part of the annual departmental evaluation planning process.
Application volumes will continue to be monitored to assess whether there is a marked increase in the number of applicants and dependants with costly health conditions making applications. To date, under the temporary public policy, they have not. The potential for a draw factor is mitigated by the fact that even without an excessive demand provision, applicants will still need to qualify under program eligibility criteria (e.g. employability, family relations) and there is a cap on admissions for each immigration category under the approved annual immigration plan. Communications will also emphasize that while the amendments are directed towards increased inclusivity, many aspects of the policy that aim to protect publicly funded health and social services will remain in effect.
Continued engagement of P/Ts provides an opportunity to receive indications of impacts on costs and wait times. Should policy changes be required to mitigate any impacts, a new policy proposal would be developed.
To ensure accurate and consistent implementation of the regulatory changes, IRCC will assess migration and medical officers’ compliance with changes in the process.
IRCC’s service standard for processing medical assessments is 80% within 4 business days of receiving all required documents. For complex cases, including those identified as a possible case of excessive demand, the service standard is 80% within 90 business days of receiving all required documents. Because eliminating consideration of special education services will reduce the number of situations in which a mitigation plan would have to be assessed by medical officers, IRCC expects that its compliance with the service standard for complex cases will increase. The increase in the cost threshold is not expected to have an effect on processing efficiency. Finally, regarding procedural fairness responses, the service standard is 80% of medical officers’ responses to migration officers within 14 business days of receiving the information from the migration officer. By amending the Regulations to clarify the respective roles of medical and migration officers in reviewing information submitted by applicants, IRCC expects its service standards to improve.
Migration Health Policy and Partnerships Division
Migration Health Branch
Immigration, Refugees and Citizenship Canada