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.

Increased intake to Parents and Grandparents Sponsorships in 2019

by Rekha McNutt

Immigration, Refugees and Citizenship Canada announced today that they have increased the number of applications that will be accepted for processing under the Parent and Grandparent sponsorship program. Starting in 2019, the government will accept 20,000 applications! 

You can read the full release here.

As always, we are happy to assist you with any questions you may have with respect to this or other immigration matters! Feel free to reach out to us.

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

Change to Age of Dependent Child to "under 22"

The Government just released Regulations amending the age of dependency from "under 19" to "under 22". However, the changes will not come into force until October 24, 2017. As such, any applications made until that date will continue to face the current definition of a child being "under 19". Nevertheless, this opens up opportunities for those who were unable to include children as dependants to sponsor those who might still be under the age of 22 when the Regulations take effect. 

The Full-Text of the Regulations can be found here.

Conditional Permanent Residence (PR) Repealed

Effective April 28, 2017, IRCC has repealed the Conditional Permanent Residence that affected sponsored spouses. This will affect the following individuals:

• Permanent residents who have been issued a Confirmation of Permanent Residence (COPR) with a condition to cohabit with their sponsor for a period of two years and for whom the two-year period has not expired.
• Permanent residents who are the subject of a report issued pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) for failing to comply with the requirement to cohabit with their sponsor for a period of two years, who have not yet been referred for an Admissibility Hearing at the Immigration Division (ID) of the Immigration and Refugee Board (IRB) pursuant to subsection A44(2) as well as those who have been referred but have not yet been issued a removal order.
• Permanent residents who have been issued a removal order for failure to comply with the requirement to cohabit with their sponsor for a period of two years and have filed an appeal to the Immigration Appeal Division (IAD) of the IRB and for whom a decision has not been made on the appeal.

Although this provision has been repealed, be aware that IRCC still retains the ability to investigate possible fraudulent marriages under the misrepresentation provision of the Immigration and Refugee Protection Act that have always existed. 

The full text of the Operational Bulletin on Conditional PR can be found here.

Humanitarian and Compassionate applications

A plea for humanitarian and compassionate relief can me used in a number of contexts where foreign nationals are otherwise unable to immigrate to Canada. It is often used to overcome otherwise insurmountable issues. These requests are highly technical and detailed.

Take a listen to this podcast that our very own Jean Munn, Q.C. did with fellow Alberta Immigration Lawyer Mark Holthe on this very topic! Jean officers tremendous insight into H&C applications. She and Mark talked about:

1. Background information on H&C applications.
2. Who is eligible and who is not eligible to apply – the typical scenario.
3. What factors are taken into consideration and what factors cannot be considered.
4. How to apply – including best practices.
5. How to make the strongest application possible.
6. Processing procedure.
7. A ton of other tips and strategies essential for getting an H&C approved.

You can find the podcast here or list to it on  iTunes [Season 1 Episode 37].

If you need help with any admissibility issue, or wish to know if you can benefit from making an H&C application, do not delay in contacting us!

2016 Immigration Levels

By Rekha McNutt

Curious to see how many (and what kind of) immigrants the government plans on admitting in 2016? Take a look at this info-graph - http://news.gc.ca/web/article-en.do?mthd=index&crtr.page=1&nid=1038699

Humanitarian and Compassionate (H&C) Applications

by Rekha McNutt

A Humanitarian and Compassionate application is often the only option someone has of remaining in Canada. In recent years, IRCC (Immigration, Refugees and Citizenship Canada) has severely restricted the scope of what can be considered in such applications. The threshold of proof had risen dramatically and was virtually impossible to meet. Officers were applying the hardship test ("unusual and undeserved, or disproportionate hardship") as a means to find ways to deny applications. 

In December 2015, the Supreme Court of Canada released a very important decision called Kanthasamy. The Judgement very strongly condemned the use of the hardship test as a means of assessing hardship, and instructed officers to look at all the evidence before them with a humanitarian and compassionate mind. 

Happily, IRCC has updated their Program Delivery Instructions (PDIs) to reflect the jurisprudence from Kanthasamy, and eliminated the hardship test altogether:

Update to guidance on humanitarian and compassionate consideration

Summary

The December 2015 decision of the Supreme Court of Canada (SCC) in Kanthasamy v. Canada (Citizenship and Immigration) affects how humanitarian and compassionate (H&C) requests under subsection 25(1) of the Immigration and Refugee Protection Act are assessed. The SCC found, in particular, that the unusual and undeserved or disproportionate hardship test improperly restricts the discretion of decision makers. As a result of the SCC decision,the hardship test is no longer to be used. The instructions regarding H&C assessments have been updated to reflect the Kanthasamy decision.

Updated instructions

• Humanitarian and compassionate considerations: Assessment and processing
• Humanitarian and compassionate assessment: Hardship and the H&C assessment
• Humanitarian and compassionate assessment: Balance between discretion and consistency
• Humanitarian and compassionate assessment: Best interests of a child

It remains to be seen how Officers will now interpret this decision and these new PDIs in assessing H&C applications. Here's to hoping that compassion returns to H&Cs once again!