Family sponsorship and exclusion from the Family Class - the "117(9)(d) problem"

by Rekha McNutt

The topic of this post is something that I encounter much more frequently than I would hope. Having just spent the day working on this exact problem, I thought it would be useful to publish this post.

Here is the typical scenario:

A person comes to Canada to work or study, and then applies for permanent residence as most tend to do. When they first come, they are single and have no children. But things change. Usually, the change involves going back home on a holiday and coming back having married somebody. This all happens while they have an application for permanent residence in process. Not wanting to delay their own application, they decide (whether on their own or through well-meaning but misinformed family/friends) not to advise Immigration Refugees and Citizenship Canada (IRCC) about that very significant change. They get their own permanent residence, then try to sponsor their spouse, and are told they cannot.

In this type of scenario, not only is the sponsor prevented from bringing their family to Canada, they also face very serious risk of losing their own permanent residency on grounds of misrepresentation. The topic of misrepresentation deserves its own post, but take away from this article that the consequences can be grave to everyone involved.

Our law says that all “family members” of a person integrating to Canada must be “examined” before that person is granted permanent residence, whether they are accompanying or not. A family member includes the person’s:

• spouse or common-law partner

• dependent children

• spouse or partner’s dependent children

• children’s dependent children

The “examination” of family members typically involves an assessment of their admissibility, namely medical, criminal, and security reviews. By not declaring a family member, a person who is applying for permanent residence is denying IRCC the opportunity to examine that family member and determine whether they are admissible to Canada. This is critical because an inadmissible family member, whether they are accompanying or non-accompanying, can render the principal applicant inadmissible as well. As such, by not declaring their family member, the principal applicant may have gained permanent residency when they should not have.

In order to deal with this non-disclosure, our Regulations contain a very harsh provision which prevents such a person from ever being able to sponsor the family members that he or she failed to declare before getting permanent residence. We call this the “117(9)(d) problem” because that is a section of our Regulations which contains this harsh provision:

117 (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

In essence, a family member who was not “examined” is not considered to be part of the sponsor’s “family class”, and therefore not somebody who can be sponsored.

The only way to overcome this lifetime ban on sponsoring that family member is to seek relief on humanitarian and compassionate (H & C) grounds. H & C applications consist of very complex legal submissions that are tailored for every client’s specific situation. Every situation is unique and requires diligence, care, and attention. These applications are difficult to succeed on because they are very discretionary. As such, it is imperative that a compelling case be presented from the outset.

There are number of factors which could be a play depending on the circumstances. Some typical factors include:

• the reasons for nondisclosure

• whether the sponsor actually gained an advantage by not declaring their family member

• the sponsors establishment in Canada

• the conditions in the country where the sponsored person lives, and the associated hardships

• the hardships of separating family members

• the best interests of any children who are affected by the situation

If a Visa Officer determines that sufficient H & C grounds exist, he can allow the sponsorship despite the application of 117(9)(d). In that case, the overseas family member is allowed to immigrate to Canada.

Usually when a sponsorship is refused, the sponsor can appeal that refusal to the Immigration Appeal Division (“IAD”). The IAD usually has H & C jurisdiction, but only in situations where the sponsor person is a member of the sponsor’s “family class”. In 117(9)(d) situations, where the person being sponsor was not examined at the time that the sponsor was granted permanent residence, there is no membership in the Family Class, and therefore no H & C jurisdiction before the IAD. Therefore, robust submissions must be made directly to the Visa office, and in the event of a refusal, the only possible way to challenge such a refusal as before the Federal Court.

If this is a problem you are facing, please contact me for help and support to achieve a positive outcome in your case.

AINP - Alberta Opportunities Stream

by Peter Wong, Q.C.

On June 14th, 2018, the long awaited changes to the AINP programs came into place. Existing applications submitted under previous streams will be processed under those previous streams will continue to be processed without regard to the new Opportunity program requirements.  Further, existing applicants are not permitted to file a new application under the Opportunity Stream without withdrawing their application in process.  Applicants who were contemplating filing applications under any of the previous streams are no longer able to as the only remaining programs are the Opportunity Stream, the Self Employed Farmer Stream and a new Express Entry Stream.  The Opportunity Stream will be the bulk of new applications. 

The Opportunity Stream has some significant differences from the Employer Driven, Post Graduate and International Graduate Streams which comprised the bulk of the previous applications.  These differences include the following:

1. A language requirement which requires all applicants to submit language test results and currently meet at least Canadian Language Benchmark 4 on all categories.  Higher requirements will be phased in over the next couple of years, with the next increase in language benchmark to 5 on June 14th, 2019.
2. A high school graduation requirement that will be phased in from the current requirement of high school graduation at the level of the home country to Alberta standards requirement.
3. Minimum annual income requirements that set basic minimum gross annual income based on size of family.
4. Minimum period of time worked in Alberta (12 months) or alternatively 24 months of proven experience outside of Canada in the occupation for which a bona fide job offer has been provided.
5. There are different requirements for post graduate work permit holders, including a 6 month requirement for minimum requirement for work in Alberta, graduation from an Alberta post-secondary learning institution that is listed in the program requirements, and specifically within particular programs that are also listed for one and two year certificates and diplomas. 

This list of changes is not exhaustive, but gives an idea of some of the significant additional requirements that have been added to the AINP that did not exist under previous streams.  For detailed information, best to consult with an expert, or refer directly to the AINP website.

Permanent Residence for under 22 children - Temporary Public Policy

by Rekha McNutt

This post follows up on our last post announcing the coming into force the change to the age of dependent children. 

You might be wondering how to gain permanent residence for a child who wasn't eligible prior to October 24, 2017. CIC has a temporary public policy in place which provides guidance on how to get this done.

The government announced the change to the age of dependency on May 3, 2017, even though it only came into force a few days ago. As such, this public policy only applies to those applications made by the parents of these children between May 3, 2017, and October 23, 2017. 

The Policy provides the following guidance for eligibility:

Based on public policy considerations, delegated officers may grant an exemption from the provisions of the Regulations listed below to foreign nationals who meet the following eligibility criteria and conditions:

A permanent residence application for a child can be made if the:

1. Child was 19, 20, or 21 as of May 3, 2017 (the date of final publication of the regulatory amendment) or as of date the parent’s permanent residence application was made, if received on or after May 3, 2017 and before October 24, 2017;
2. Parent or child had a permanent residence application that was either pending on May 3, 2017 or was received on or after May 3, 2017 and before October 24, 2017 (the child must have been previously identified as “additional family” on their parent’s application);
3. Child is not a spouse/common-law partner; and,
4. Child is not otherwise inadmissible.

The child can be:

1. Processed or added to an application (as a dependent child) if the permanent resident visa or Confirmation of Permanent Residence (COPR) had not been issued at the time the Department was notified of the intention to add the child; OR
2. Sponsored as a member of the Family Class once the parent is granted permanent residence.

Note: Refugees and protected persons may add a child who was 19, 20, or 21 on May 3, 2017 and (not a spouse/common-law partner) as an accompanying or non-accompanying dependant on a pending application; non-accompanying dependants would be able to apply for permanent residence within the one-year window.

An application to sponsor a child who is eligible under this public and is 22 or over at time of sponsorship, must be received by the Department within one year after their parent is granted permanent residence. Children who are under 22 at time of sponsorship will be processed under the regular sponsorship regulations.

Notification Period: Parents who wish to apply for their child to come to Canada must notify the Department of their intention to do so by January 31, 2018, in accordance with instructions provided by the department.

For those parents whose PR applications have been finalized already, and who may still have children under 22, a simple/regular sponsorship of a child application is still possible. 

Age of Dependent Child - now 'under 22'

by Rekha McNutt

Today is the day! The age of dependent children is to revert back to 'under 22'. You can read the original release here.

The previous changes had lowered the age of dependent children to under 19 and removed the exception for those enrolled in post-secondary education.

Going forward, a "dependent child" is any biological or adopted child of the parent, who is in one of the following situations of dependency:

• Is under 22 and not a spouse or common-law partner;
• is 22 or older but has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition 

Those who have pending permanent residence applications can now add their under 22 children to their application, if they were formerly prevented from doing so when the age limit was under 19. Those whose permanent residence applications have been finalized may be in a position to sponsor their under 22 child.

Alberta Immigrant Nominee Program (AINP) - 2018 program changes

by Rekha McNutt

AINP has announced some significant changes to the way it will intake applications from 2018. Here are some insights from their recent release:

Key changes

• Effective Jan. 2, 2018, the AINP will consolidate the Employer-Driven and Strategic Recruitment Streams and 11 sub-categories under one new Alberta Opportunity Stream.
• The Alberta Opportunity Stream will have one single set of eligibility criteria, ensuring a simpler application process and shorter processing times.
• Beginning in 2018, the AINP will have the ability to place yearly caps on the number of applications accepted and nominations issued for certain sectors and occupations, ensuring equitable distribution of workers and fairness across all sectors and industries in Alberta.
• Alberta will add an Express Entry Stream allowing the AINP to select candidates from the federal Express Entry pool. This will be operational in January 2018.

Alberta labour anticipates shortages in the following areas:

• nurse supervisors and registered nurses (shortage of 5,434 workers by 2025)
• medical technologists and technicians (shortage of 2,322 workers by 2025)
• computer and information systems professionals (shortage of 1,426 workers by 2025)
• managers in construction and transportation (shortage of 1,386 workers by 2025)
• sales and service supervisors (shortage of 1,145 workers by 2025)

Some notable features of the new Alberta Opportunities Stream:

1. Occupation Requirements - your occupation must be eligible both at the time you apply and when AINP assesses the application. There is a list of ineligible occupations but it does not appear to limit the NOC skill levels
2. Residency & work permit requirements - applicants must be living and working in Alberta on valid work permits (implied status or awaiting restoration will not work)
3. Mandatory language testing - seems to apply to all NOC levels and currently requires a min. of CLB 4 (up to CLB 5 beginning in 2019)
4. Educational requirements - minimum high school diploma and an Education Credential Assessment (ECA) if the diploma is foreign. Exceptions exist if your work experience is in a compulsory or optional trade, and you have a valid Qualification Certificate 
5. Work Experience - You must remain working in the same occupation throughout the processing of your application. You must demonstrate minimum work experience in Alberta or abroad in the same occupation applying under. A written job offer is also required.
6. Income levels - minimum income is required and varies depending on the size of your family unit

HUGE decision by SCC - Conditional Sentences & Serious Criminality for Permanent Residents

by Rekha McNutt

The Supreme Court of Canada just released its decision in the Tran case. At issue in the case was the interpretation to be given to section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA), which reads:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

Any permanent residents found to be inadmissible for "serious criminality" lost their right of appeal to the Immigration Appeal Division (IAD) pursuant to section 64 of IRPA:

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

The SCC in Tran clarified two points:

1. the relevant point in time when the punishment of an offence is to be assessed; and
2. whether conditional sentences are to be considered a "term of imprisonment"

Tran had been charged under the Controlled Drug and Substances Act for production of a controlled substances (he had a grow op). At the time of his charge, the section he was charged under had a maximum possible punishment of 7 years in prison (therefore not "seriuos criminality" under IRPA). However, the max possible punishment was amended to 14 years in prison by the time he was convicted (now suddenly "serious criminality". 

The SCC clearly held that "the relevant datefor assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision" [paragraph 42].

The other issue in Tran was the actual punishment that was imposed. Tran received a 12-month conditional sentence of imprisonment, to be served in the community. In essence, no jail time. The question then became whether a conditional sentence ought to be interpreted as a "term of imprisonment" for purposes of IRPA, thereby classifying this as a "serious criminality" issue and barring any appeal rights to the IAD.

The SCC held that a conditional sentence was not equivalent to a prison sentence and the two ought not to be considered as such. The SCC wrote:

[25] First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

[26] Chief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”...

[28] Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.

[32] If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow...It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1)(h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

This decision has enormous implications for any permanent residents facing criminality issues. If a permanent resident has been convicted of an offence "punishable" by 10 years or more, but receives a conditional sentence, then they still have an appeal right to the IAD. The IAD has the ability to allow such individuals to remain in Canada despite the criminality, by considering any humanitarian and compassionate factors that may justify such a decision. 

Immigration Appeal Division - National Post Article

by Peter Wong

The Immigration Appeal Division is an important tribunal that is integral to our immigration system.  It deals with cases where Canada Immigration has refused spousal sponsorships, parental sponsorships and permanent residents who may be removed from Canada for various issues including the meeting of residency requirements after becoming a permanent resident.  There is a current crises within the IAD as many members appointed by the previous government are not being renewed, and the current government has not yet appointed new members to replace the past members.  This National Post Article discusses this problem:

http://nationalpost.com/news/canada/western-canadas-immigration-appeal-system-in-crisis-lawyers-say/wcm/71bd83cf-4149-4b7d-9ee6-4fad16662560