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Excluded Family Members In Immigration Applications

There are cases that a foreign national do not declare some family members when they apply to immigrate to Canada. Some applicants do not have sufficient knowledge of Canadian Immigration rules and thought that having children or being married can be reasons for an application refusal. Some received incorrect advice from other people they know and this can cause misrepresentation. When a family member is excluded in the application, that person cannot undergo a medical examination required by Canada Immigration.

R125(1)(d) and the overseas equivalent R117(9)(d) exclude persons from membership in the family class by virtue of their relation to the sponsor if they were not examined as part of the sponsor’s application for permanent residence. The intent of the regulation was to ensure that where, by decision of the applicant, a family member was not examined, that the applicant cannot benefit later by sponsoring this person as a member of the family class.

In order to preserve the right to sponsor, the non-accompanying family member must be examined and the applicant should be so advised. If this advice is declined, it should be noted on the record.

The following are some examples of family members who have been excluded as a result of this regulation:

  • A man immigrates to Canada without knowing that a woman has given birth to his child. According to the Canadian immigration laws, that child is not his family member and therefore cannot be sponsored.
  • A woman who immigrates to Canada is pressured by family or others not to mention a child she has had out of wedlock. According to the Canadian immigration laws, that child is not her family member and therefore cannot be sponsored.
  • A refugee is resettled to Canada. Shortly before leaving, she gets married. Since she lives in a refugee camp, she has no way of contacting the Canadian visa officer. The people to whom she can speak advise her to go to Canada and then apply to sponsor her husband. She arrives in Canada pregnant. According to the Canadian immigration laws, her husband is not a family member and therefore cannot be sponsored.
  • A man is selected as an economic immigrant to Canada. A week before he leaves, he marries his fiancée, assuming that he can apply to sponsor her once he arrives in Canada. After he arrives in Canada he learns that according to the Canadian immigration laws, his wife is not a family member and therefore cannot be sponsored.
  • A man comes to Canada and applies for refugee status, which is granted. Although he has reported that he is married in his refugee claim forms, when he applies for permanent residence he does not include his wife on the form as he does not have enough money to cover her processing fee. He speaks little English or French, and is assisted in filling out the form only by a friend with no legal experience. Under 117(9)(d), his wife is not a family member and therefore cannot be sponsored.

Officers can also assess the applicant for humanitarian and compassionate factors if the applicant requested it or upon the officer’s discretion if the officer believed that the applicant is believed to have those factors.

In considering the use of H&C for excluded family members, the officer should take into account all relevant factors including, but not limited to, the client having understanding of the rules and obligations under the law and that application kits provides clear information to declare and examine all family members. The rule of exclusion found in R117 (9)(d) is also to encourage honesty and must not allow applicants to bypass the rules. Humanitarian and compassionate considerations are also considered for exceptional cases.

Applicants should be aware that it is necessary to declare family members, they should do so in all cases in order to avoid future complications in their applications.

Mary Jone Causing Buchholtz
Immigration Program Student at Ashton College
under the tutelage of Jose Godoy Toku


References:

http://www.oba.org/en/pdf_newsletter/immfeb05.pdf
http://ccrweb.ca/files/excludedfammembers.pdf
http://ccrweb.ca/documents/excludedfam.pdf
http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

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