VIH Info Droits

The following are the recognized categories of people eligible to apply for permanent residency: qualified workers, business people, and specified family members of a person who already has permanent resident status (for example: spouse, common-law partner, dependent children…).

1.1 Medical Examination
All applicants for permanent residency in Canada over 15 years of age are required to undergo an immigration medical examination, including an HIV test.

A positive HIV test result can make it difficult for a person to immigrate permanently to Canada. Essentially, while Canadian laws and policies don’t mention HIV specifically, they do allow for an application to be refused on the grounds of medical inadmissibility.

The refusal of permanent residency on medical grounds can be justified by one of the following two criteria:

• The person’s health condition is deemed to represent “a danger to the health or safety of the public.” However, immigration authorities no longer apply this designation to people living with HIV.¹
• The person is deemed to represent “excessive demand on health or social services” in Canada.

1.2 The Excessive Demands on Health or Social Services
The criterion of “excessive demand” is used by immigration authorities to limit the admissibility of applicants of permanent residency by refusing applications based on costs (the “excessive demand” that the applicant could cause on health and social services). 

The demand will be said to be “excessive” in two circumstances:

1. The potential costs related to health and social services the applicant may engender surpass that of the annual average potential costs of Canadian resident (the average is calculated on a 5 to 10 consecutive years basis, as the case may be);
2. Where a demand would increase the current wait lists for health and social services in Canada and would increase the rate of mortality and morbidity in Canada because the services required could not be offered in a timely manner. 

In concrete terms, this criterion means that Canada does not wish to spend more on health or social services for permanent resident applicants than what is already spent on average for Canadian residents.

It is important to know that the idea of “excessive demand” doesn’t look solely at the current health of the applicant, but also at their potential long-term healthcare needs. Therefore, immigration services will also evaluate whether an applicant could become an “excessive demand” regarding health and social services within the next ten (10) years. The fact that a person does not require care and/or help at the time of application is irrelevant; the calculation looks beyond current costs, and assesses all foreseeable costs that a person could engender. As a result, if it is determined that you have a higher than average risk of being hospitalized or that your medical needs will become too costly in the ten (10) years following your application, the application could be refused.

The final assessment of the application therefore comes down to financial considerations. Given the high cost of the antiretrovirals and medical care needed by people living with HIV, those who apply to become permanent residents could potentially represent, for Immigration, Refugees and Citizenship Canada (IRCC), an “excessive demand on health or social services”. (see sections 1.3 and 1.4). 

This consideration of the risk of “excessive demand” doesn’t apply in the following circumstances:

• If you have applied as a refugee
• If you have been sponsored as the spouse or dependent child of a Canadian citizen or permanent resident.

In these two situations, being HIV positive would not be an obstacle to your application for permanent residency. However, you would have to sign a document authorizing immigration authorities to inform your sponsor and/or partner living in Canada of your HIV positive status. Indeed, the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes provides for a 60-days delay, from the date the applicant is informed of the Policy, to voluntarily disclose their HIV status to their spouse or partner. If you refuse to disclose to your sponsor and/or partner living in Canada, you will be required to withdraw your request for permanent residency.

1.3 Temporary Public Policy
The Government of Canada recently created an exemption to the policy regarding excessive demand on health and social services, in effect as of June 1, 2018. This exemption modifies the established threshold of “excessive demand” to facilitate immigration for applicants with health conditions that usually require health and social services with costs higher than that of the Canadian average per resident. 

As of June 1, 2018, the threshold has been raised to three times the Canadian average. This could greatly facilitate the approval for permanent residency of people living with HIV since the cost for most antiretrovirals is below this amount.

The calculation of the costs will nevertheless be the same: it takes into account foreseeable costs and not real ones and the costs are calculated on a period of ten (10) years following the application. 

This new policy applies to all applications received on or after April 16, 2018. The new policy will also apply to application that were pending on this date. 

1.4 The Mitigation plan
On December 31, 2009, the Federal Court made a ruling that requires the government to examine the possibility of a person subsidizing their own medical costs (through private insurance or insurance in their home country). The Court concluded that “the ability and willingness of applicants to defray the cost of their out-patient prescription drug medication is a relevant consideration in assessing whether the demands presented by an applicant’s health condition constitute an excessive demand.”

Therefore, if an applicant surpasses the threshold of “excessive demand”, immigration services must enable them to submit a mitigation plan explaining how they intend to cover medication costs. 

The quality of the mitigation plan is the most important element in evaluating the applicant’s ability and intentions. It should be realistic and credible and should portray the actual needs of the person concerned.

In 2010, the Federal Court made another ruling requiring the government to examine any circumstances specific to the applicant, which might prevent a simple, general conclusion from being reached. Immigration authority physicians are now required to individually evaluate each medical file, the medications needed, and the applicant’s eligibility for private insurance and/or their ability to opt-out of the drug insurance plan funded by the province or territory where the applicant intends to reside.

1.5 Summary
To summarize, even though the criterion of “excessive demand” may limit the admissibility of an applicant to a permanent residency, the new exemption provided by the Temporary Public Policy offers a ray of hope. Instead of establishing the threshold of admissibility to the average costs related to health and social services of Canadian residents, the exemption allows applicants whose potential costs may go up to three (3) times the Canadian average. The applicants for permanent residency whose costs related to health and social services remain greater than this new threshold will nevertheless have the possibility to present a mitigation plan. 

2.1 Short-term Temporary Resident Visa (- 6 months)

Temporary resident visa applicants are generally not eligible for provincial healthcare plans (hospital or drug). As a result, in most cases, there is no risk that the applicant will represent “excessive demand on health or social services.”

Therefore, contrary to permanent residency, if you apply for a temporary resident visa (- 6 months), you would only have to undergo a medical exam if you intended to work in an occupation in which public health must be protected (for example: health services workers, clinical laboratory workers, elementary or high school teachers, and daycare workers).

It is still important to bear in mind that visa officers retain the discretionary right to require a medical exam at any time, if they feel it is warranted.

Finally, it is strongly recommended for people staying in Canada temporarily, and therefore not admissible to the public health insurance, to obtain private insurance which would cover health and social services costs in case of an accident occurring during the stay. These insurance policies are generally known as “travel insurance for visitors to Canada”. When obtaining such an insurance policy, it is important to enquire about pre-existing conditions and possible exclusions.

2.2 Long-term Temporary Resident Visa (+ 6 months)

It’s possible that you may be asked to undergo an immigration medical examination (including an HIV test) and that your health may factor into the assessment of your visa application. This generally depends on the expected duration of your visit to Canada, your eligibility for public health insurance, and your general health.

Some applicants are always required to undergo a medical exam. These are people who:

• Lived for six months or more in a designated country; in other words, a country in which certain transmissible diseases are more prevalent than in Canada.
• Are coming to Canada to work in an occupation in which public health must be protected (for example: health services workers, clinical laboratory workers, elementary or high school teachers, and daycare workers).
• Are applying for a parent or grandparent Super Visa (this is a two-year visa than can be renewed five times up to a maximum duration of ten years).
• Appear at the border or a port of entry in a state of poor health.

Once a medical exam is done (which automatically includes an HIV test), your application will be treated in much the same way as an application for permanent residency. You will need to demonstrate that you will not represent an “excessive demand” on Canadian health and social services for the duration of your visit to Canada. In the alternative, you will have to provide a realistic and credible mitigation plan to describe how you will cover the cost of your medication and care throughout your stay in Canada, if necessary.

“Protected persons” and refugees must undergo an IRCC medical exam, but they are exempted from inadmissibility on the grounds of representing an excessive demand on health services. Once it has been determined that an asylum-seeker meets the criteria for protection, the person may submit a request for permanent residency in Canada even if they need care and antiretroviral medication. That person would then be able to sign up for provincial health insurance just like any other permanent resident.