Excessive Medical Demand Inadmissibility Question

[lumpyryan]

Hi,
I am a non-dependent child who is being sponsored by my father under the "Lonely Canadian" exception. I am married, and I know that my wife and I will require a medical exam. My wife has some serious health problems, and I was curious if she would be exempted from being found "medically inadmissible". Canada says that if a dependent child is being sponsored, then that child's spouse cannot be found medically inadmissible for excessive demand. However, I'm unsure if this exemption would apply to a non-dependent child applying under the "Lonely Canadian" exception. Thanks for any insight.

 

[primaprime]

This is a tricky one. I would suggest you consult an immigration lawyer.

Canada says that if a dependent child is being sponsored, then that child's spouse cannot be found medically inadmissible for excessive demand.

For the record, someone with a spouse is by definition not a dependent child.

Here is what section 38 of the Immigration and Refugee Protection Act (IRPA) says:

38 (1) A foreign national is inadmissible on health grounds if their health condition
(a) is likely to be a danger to public health;
(b) is likely to be a danger to public safety; or
(c) might reasonably be expected to cause excessive demand on health or social services.

Exception
(2) Paragraph (1)(c) does not apply in the case of a foreign national who
(a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations;
(b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances;
(c) is a protected person; or
(d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).

We can see that A38(1)(c) establishing inadmissibility on the grounds of excessive demand does not apply to the sponsor's child, per A38(2)(a), and A38(2)(d) seems to extend this to the spouse of a person referred to in paragraph (a), as prescribed by the regulations. So, we turn to section 24 of the Immigration and Refugee Protection Regulations (IRPR):

24 (1) The exception set out in paragraph 38(2)(a) of the Act does not apply to a child who is not a dependent child of the sponsor.

Prescribed family members
(2) The following family members of a foreign national referred to in paragraph 38(2)(a) of the Act are prescribed for the purpose of paragraph 38(2)(d) of the Act:
(a) the dependent child of the sponsor’s spouse or common-law partner;
(b) the dependent child of the dependent child referred to in paragraph (a); and
(c) the dependent child of the sponsor’s dependent child.

Exception
(3) Paragraph 38(1)(c) of the Act does not apply to a foreign national who is a member of the family class and is
(a) the conjugal partner of a sponsor;
(b) the dependent child of the conjugal partner referred to in paragraph (a);
(c) the dependent child of the dependent child referred to in paragraph (b); or
(d) a person referred to in paragraph 117(1)(g).

Now, we see that R24(1) in fact excludes a non-dependent child (such as you) from the meaning of child under A38(2)(a), and furthermore, the only prescribed family members "for the purpose of paragraph 38(2)(d)" are dependent children.

Unfortunately, this would seem to mean neither you nor your spouse are exempt from being deemed inadmissible on the grounds of excessive demand. But again, I am not an expert, so the advice to consult an immigration lawyer holds. Good luck!

 

[lumpyryan]

Thank you so much for all this explicit information. I believe that an Immigration Lawyer might be the best person to clarify, but this is incredibly helpful. Thank you!

 

[primaprime]

The part that doesn't quite make sense to me is A38(2)(d), which refers to spouses, but then the operative section of the regulations, R24(2), only lists dependent children. Perhaps "where prescribed by the regulations" only connects to the "other family member" at the end of the paragraph, even though it appears before the word "spouse"—not that this changes the application of R24(1).

If there was ever a case to take to a lawyer and not an anonymous internet forum, this might be it.

 

[lumpyryan]

I trust that medical inadmissibility would still apply. I don't believe that Section 38 (2) (d)'s ambiguous phrasing of an "other family member" would necessarily override Section 24 (1). Definitely a question for a lawyer. Thanks again!

 

[scylla]

Hi,
I am a non-dependent child who is being sponsored by my father under the "Lonely Canadian" exception. I am married, and I know that my wife and I will require a medical exam. My wife has some serious health problems, and I was curious if she would be exempted from being found "medically inadmissible". Canada says that if a dependent child is being sponsored, then that child's spouse cannot be found medically inadmissible for excessive demand. However, I'm unsure if this exemption would apply to a non-dependent child applying under the "Lonely Canadian" exception. Thanks for any insight.

She is definitely not exempt. The exemption does not apply in your scenario since you are being sponsored under the other relative category and are not a dependent child. Both you and your wife must successfully past the medical for sponsorship to be approved.

The exemption applies to dependent child sponsorship and sponsorship of spouses / common law / conjugal partners.

 

[canuck78]

I trust that medical inadmissibility would still apply. I don't believe that Section 38 (2) (d)'s ambiguous phrasing of an "other family member" would necessarily override Section 24 (1). Definitely a question for a lawyer. Thanks again!

Your father seems to have been granted citizenship fairly recently. Has he been living in Canada?