Many countries deny entry to people with AIDS or who are HIV-positive for fear of endangering the public health of their population, which may seem obvious and understandable, but Canadian law or policy does not contain a blanket exclusion of people with HIV, nor does it specifically mention HIV or AIDS; In fact, Canada allows such persons to travel to the country, without, of course, neglecting the preservation and care of its citizens; but it sets strict criteria for approving or disapproving an application depending on whether it is for permanent residence, temporary residence or asylum. In this Immiland article, each of the applications and their probability of rejection for an HIV positive person or person with AIDS are detailed.

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Permanent residence

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The following are the recognized categories of persons who may apply for permanent residence:

• Skilled workers.
• Entrepreneurs.
• Certain family members of a person who already has permanent resident status (e.g., spouse, domestic partner, dependent children, among others).

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Medical examination includes HIV testing

All applicants for permanent residence in Canada over the age of 15 must undergo an immigration medical examination, including an HIV test.

A positive HIV test result can make it difficult for a person to permanently immigrate to Canada because, although Canadian laws and policies do not specifically mention HIV, they do allow for an application to be refused on the basis of medical inadmissibility.

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What criteria are taken into account to deny permanent residency for medical reasons?

A denial of permission for permanent residence for medical reasons may be justified by one of the following two criteria:

1. When the person's poor health status is deemed to pose a danger to public health and safety. (However, immigration authorities no longer apply this designation to people living with HIV).
2. When the person is deemed to represent an excessive demand for health or social services in Canada.

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What is the excessive demand for health or social services?

The immigration authorities use the excessive demand criterion to limit the admissibility of applicants for permanent residence by rejecting applications based on costs (the excessive demand that the applicant could cause on health and social services).

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Demand is considered excessive when both of these circumstances are present:

1. The potential costs related to health and social services that the applicant may generate exceed the average potential annual cost of the Canadian resident (the average is calculated on a 5 to 10 consecutive year basis, depending on the case).
2. Where demand would increase current waiting lists for health and social services in Canada and increase the mortality and morbidity rate, as the required services could not be provided in a timely manner.

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

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It is important to know that the idea of excess demand is not only focused on the applicant's current health, but also on his or her potential long-term health care needs. Therefore, immigration services will also assess whether an applicant could become an excess demand with respect to health and social services in the next ten (10) years. 

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Costs and the possibility of application rejection

The fact that a person does not require care and/or assistance at the time of application is irrelevant; the calculation goes beyond current costs and assesses all foreseeable costs that a person could incur. 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 within ten (10) years of your application, then your application may be denied. Therefore, the final evaluation of the application is based on financial considerations. 

Given the high cost of antiretrovirals and the medical care needed by people living with HIV, applicants for permanent resident status may represent an excess demand for health or social services for Immigration, Refugees and Citizenship Canada (IRCC). (See Temporary Public Policy on the Excess Demand Threshold and the Excess Demand Mitigation Plan).

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Exemptions to the risk of excessive demand for an HIV-positive person

The consideration of the risk of excessive demand does not apply in the following circumstances:

• If you have made an application as a refugee.

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

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In these two situations, being HIV positive would not be a bar to your application for permanent residence. However, you would have to sign a document authorizing the immigration authorities to inform your sponsor and/or partner living in Canada of your HIV-positive status. In fact, the automatic partner notification policy for HIV-positive applicants in the family and dependent refugee classes provides for a 60-day delay, from the date the applicant is informed of the policy, to voluntarily disclose your HIV-positive status to your spouse or partner. If you refuse to disclose this information to your sponsor and/or partner living in Canada, then you will be required to withdraw your application for permanent residence.

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Temporary public policy on the threshold of excessive demand

The excess demand threshold is an amount used by the Canadian government to decide whether the cost of the condition places an excess demand on Canada's health and social services. For this year 2023, the excess demand cost threshold is $128,445 CAD over 5 years (or $25,689 CAD per year).

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The Government of Canada recently created an exemption to the policy relating to excessive demand for health and social services, effective June 1, 2018. This exemption modifies the established excessive demand threshold to make it easier to immigrate applicants with health conditions that generally require health and social services with costs above the Canadian average per resident. As of that date, the threshold has been raised to three times the Canadian average, which could greatly benefit the approval of permanent residence for people living with HIV, as the cost of most antiretrovirals is less than that average amount. However, the cost calculation will be the same, i.e. it takes into account foreseeable costs and not actual costs and costs calculated over a period of ten (10) years from application.

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

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The mitigation plan for the applicant with HIV or AIDS

On December 31, 2009, the Federal Court issued a ruling requiring the government to examine the possibility for an individual to subsidize his or her own medical costs (through private insurance or insurance in his or her home country). 

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In this sense, the Court concluded that:

"The ability and willingness of applicants to defray the cost of their outpatient prescription drugs is a relevant consideration in assessing whether the claims presented by an applicant's health condition constitute an excessive demand."

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Therefore, if an applicant exceeds the excessive demand threshold, immigration services must allow them to submit a mitigation plan that explains how they intend to cover the costs of the medications. The quality of the mitigation plan is the most important element in assessing the applicant's ability and intentions. It should be realistic and credible and should reflect the actual needs of the individual concerned.

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In 2010, the Federal Court issued another ruling requiring the Canadian government to examine any specific circumstances of the claimant, which may preclude a simple, general conclusion. Immigration authority physicians must now individually assess each medical record, the medications required and the applicant's eligibility for private insurance and/or ability to opt out of the drug insurance plan funded by the province or territory where the applicant intends to reside.

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Summary on permanent residency in Canada for a person with HIV or AIDS

While the excessive demand criterion may limit an applicant's admissibility for permanent residence, the new exemption provided by the Temporary Public Policy offers a glimmer of hope. Instead of setting the admissibility threshold at the average health and social services-related costs of Canadian residents, the exemption is permissive for applicants whose potential costs can reach up to three (3) times the Canadian average. Applicants for permanent residence whose health and social services-related costs remain above this new threshold will nevertheless have the option of submitting a mitigation plan.

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Temporary residence

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Short-term temporary resident visa (6 months or less)

Temporary resident visa applicants (visitors, students and workers) are generally not eligible for provincial health (hospital or drug) plans, which, in most cases, does not create a risk that the applicant represents an excessive demand for health or social services. Therefore, contrary to permanent residency, if the applicant applies for a temporary resident visa (less than 6 months), he/she would only have to undergo a medical examination if he/she intends to work in an occupation in which public health must be protected (e.g. health service workers, clinical laboratory workers, primary or secondary school teachers, and day care workers).

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Remember that visa officers retain the discretionary right to require a medical examination at any time, if they feel it is warranted.

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Finally, persons staying temporarily in Canada and therefore not eligible for public health insurance are advised to obtain private insurance to cover the costs of health and social services in the event of an accident during their stay. These insurance policies are generally referred to as "travel insurance for visitors to Canada". When obtaining such an insurance policy, it is important to inquire about pre-existing conditions and possible exclusions.

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Long-term Temporary Resident Visa (6 months or more)

For this procedure, you may be required to undergo an immigration medical examination (including an HIV test) and your health may be taken into account when assessing your visa application. This generally depends on the expected length of your visit to Canada, your eligibility for public health insurance and your general health.

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Some applicants must always undergo a medical examination. For example:

• If you lived six months or more in a designated country; that is, a country in which certain communicable diseases are more prevalent than in Canada.
• If you came to Canada to work in an occupation in which public health must be protected (for example: health service workers, clinical laboratory workers, elementary or secondary school teachers and day care workers).
• If you are applying for supervision for your parent or grandparent (this is a two-year visa that can be renewed five times up to a maximum duration of ten years).
• If it appeared in the border system or a port of entry in poor health.

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Once a medical examination is completed (which automatically includes an HIV test), your application will be treated in the same manner as an application for permanent residence. You will need to demonstrate that you will not represent an undue demand on Canadian health and social services for the duration of your visit to Canada. Alternatively, you will need to provide a realistic and credible mitigation plan to describe how you will cover the cost of your medication and care for the duration of your stay in Canada, if necessary.

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3. Asylum seeker

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Protected persons" and refugees must undergo an IRCC medical examination, but are exempt from inadmissibility as representing an unreasonable demand for health services. Once it has been determined that an asylum seeker meets the criteria for protection, the person may submit an application for permanent residence in Canada even if he or she is in need of antiretroviral care and medication. That person would then be able to enroll in provincial health insurance like any other permanent resident.

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For more information on immigration and HIV, you can also use this interactive online tool HIV et immigration, suis-je admissible? (French version only); and in this document from the Canadian HIV/AIDS Legal Network on Immigration and travel to Canada for people with HIV: questions and answers (2015), you can expand on all the information in this article.

If you would like advice on your current health situation or that of a family member in a migration case to Canada, you can make an appointment with one of our ICAC-regulated consultants. At Immiland Canada, we are here to guide you. Learn more about our services here.

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With love,

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Immiland