Crackdown on immigration fraud tied to health care benefits

WILLIAM MACINTOSH RECENT proposed changes to the Citizenship Act have highlighted concerns raised by some critics of the purported abuse of the medical health care system in Canada by various persons. It is suggested that so-called citizens of convenience come to Canada only to take advantage of the social and health care benefits, without contributing to their cost.

The potential abuse of the health care system is not limited to immigrants or naturalized citizens, but also applies to natural-born citizens. As the population ages and the need for health care increases, the government faces more pressure to control costs. One way to control costs is to spend more on enforcing the rules on coverage eligibility, something Sayed Geissah and Souad Khalaf found out about recently.

A government-funded health care system has been a part of social policy in Canada since the 1960s. Each province is responsible for the delivery of health care under the constitution. Each province has its own laws governing how health care is delivered and paid for, and who is eligible to claim its benefits. The principal law governing health care in British Columbia is the Medicare Protection Act.

Under that law residents are entitled to medicare coverage. The law defines a resident as a citizen or permanent resident who makes his or home in British Columbia, and who is physically present in the province for at least six months in a calendar year or a shorter period set under regulations. It also includes a person deemed by regulations to be a resident, but does not include a tourist or visitor.

Detailed rules concerning deemed residency, absences for vacation or work, and extension of absences are set out in the Medical and Health Care Services Regulation. The rules are extensive. Deemed residency extends to various foreign nationals in British Columbia, including those here under study and work permits.

The Medical Services Commission is responsible for enforcement of the Medicare Protection Act. It will investigate cases where questions are raised about a person’s residence and their continuing eligibility for coverage. Such an investigation arose in 2009 for Mr. Geissah and Ms. Khalaf. They immigrated to Canada in 1994 with their three sons. By 2002 their sons had moved. They now live throughout the Middle East. Since 2002, the couple claimed to visit their sons and grandchildren for up to six months each year, before returning to live in British Columbia.

The couple was asked to provide evidence of their travels between 2002 and 2010, which they refused to provide. Based on the evidence available, including that the couple had made no health care claims during two years and infrequently in all other years, the Commission decided the couple had not met the residency requirement during those years and retroactively cancelled their coverage from 2002 up to June 2010. A review by a delegate upheld the decision. A subsequent application for judicial review by the Supreme Court of BC was dismissed. In January, 2014, the BC Court of Appeal upheld that decision.

The appeal court dismissed all of Mr. Geissah and Ms. Khalaf’s arguments, upholding the finding that the Commission’s delegate could reasonably come to the conclusion, based on the evidence before him, that it was more likely than not that the couple did not meet the residency requirement. The court noted that the finding was limited to MSP coverage and was not a determination of eligibility for entitlement to benefits under federal programs such as Old Age Security. Fortunately for the couple, the province did not seek repayment of the costs of the medical services it paid for during the ineligibility period.

In 2011, 14 per cent of Canada’s population was 65 years of age and older. That is expected to rise to about 23 per cent by 2031 and will remain at about a quarter of the population for the following 30 years. An aging population poses more demand on health care. Either the government finds ways to decrease costs, or increases taxation to pay for the increased costs. Efforts are being made to improve health through alternative and preventative medical treatment.

I expect there will be continued political pressure on government to crack down on abuse of the medicare system. For the past 15 years provinces have been diligently enforcing sponsorship undertakings to recover welfare payments. With tighter tax dollars available, there will be greater enforcement of medicare eligibility requirements. The federal government’s changes to the Citizenship Act and its emphasis on investigating immigration fraud, is part of the larger concern about funding social benefits in Canada.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at [email protected]

BY WILLIAM MACINTOSH